Vs. State of Himachal
Pradesh  Insc
370 (3 September 2002)
Lahoti & Brijesh Kumar. Brijesh Kumar, J.
Appeal (crl.) 838 of 2001 Appeal (crl.) 693 of 2001
of Himachal Pradesh State of Himachal Pradesh Hukmu Devi
above-noted appeals arise out of the judgment and order dated September 20, 2000 passed by the High Court of Himachal
Pradesh in Crl. Appeals No. 304 and 367 of 1998. The three appeals before us
have been heard together and they are being disposed of by one common judgment.
appeals preferred by Dharminder and Durga Nand are against their conviction
under Section 302/34 IPC for murder of Laiq Ram. They have been sentenced to
undergo imprisonment for life and also to pay a fine of Rs.5000 each and in
default of payment of fine, to undergo rigorous imprisonment for a further
period of two years. They have also been convicted under Section 307/34 IPC for
attempt to murder of Neel Kanth son of Laiq Ram and sentenced to undergo
rigorous imprisonment for seven years and also to pay a fine of Rs.1000/- each
and in default of payment of fine, to undergo rigorous imprisonment for a
further period of six months. They have also been convicted under Section 323
read with Section 34 IPC for causing simple injuries to Gangawati, wife of Laiq
Ram and sentenced to undergo rigorous imprisonment for six months and also to
pay a fine of Rs.500/- each and in default of payment of fine, to undergo
rigorous imprisonment for a further period of two months.
the appeal filed by the State of Himachal Pradesh is concerned, it has been preferred against acquittal of Hukmo
Devi, Promod Kumar and Padma Ram by the trial court and upheld by the High
to the prosecution case the incident occurred on 24.10.1995 at about 2.00 P.M. when Gangawati PW-5 on return to her house after
cutting grass from Jungle, heard the sound of cutting of tree and on going to
the spot, she found that the appellant Durga Nand was cutting her Baan tree and
the appellant Dharminder was ploughing the field. She wanted to go to her house
to inform her son but in the meantime the appellants along with Hukmu Devi, Bhaskra
Nand and Bimla Devi attacked her with Dandas. They were also helped by Pramod.
She raised alarm, upon which Neel Kanth, her son arrived to rescue her. All the
accused persons started beating Neel Kanth. On seeing this merciless assault, Laiq
Ram, father of Neel Kanth and husband of PW- 5 Gangawati, finding himself
helpless to save his son, took up the gun and fired to scare away the
assailants as a result of which Durga Nand received injuries on his legs,
thighs and abdomen. The accused persons are said to have snatched the gun of Laiq
Ram and he was also given lathi blows. They are said to have pushed Laiq Ram
and Neel Kanth below the field. Durga Nand gave a blow with pipe on the head of
Laiq Ram. As a result of the injuries received, Laiq Ram died at the spot. His
dead body was thrown in the Nala. It is further alleged that Neel Kanth who had
also received severe injuries was dumped near the dead body of Laiq Ram.
Devi, wife of Neel Kanth rushed to the house of Shiv Lal for help. He came to
the spot and saw Laiq Ram lying dead and Neel Kanth in the injured condition.
He went to Lafu- ghati where he lodged the report and his statement was
recorded by PW-18 Pratap Singh, ASI. He also took Neel Kanth to Theog and got
him admitted in the hospital.
police after completing the investigation filed the chargesheet against the
prosecution case in so far motive for commission of crime is concerned is that Padma
Ram, at the instance of Ganeshu, father of Gangawati started living in Ganeshu's
house in village Kelvi Jubber, Gangawati was then aged about 6 or 7 years. Laiq
Ram and Durga Nand are sons of Padma Ram. On the death of Ganeshu, Padma Ram
started looking after the entire property of Ganeshu. It is said that Ganeshu
desired that his daughter Gangawati be married with Laiq Ram. Gangawati on
attaining majority inherited the property of her father. Padma Ram married his
son Laiq Ram to Gangawati. The prosecution case further is that Padma Ram
wanted that Durga Nand be also recorded as co- sharer to the extent of half
share in the property inherited by Gangawati but Gangawati and Laiq Ram did not
agree to it. Appellant Durga Nand, Padma Ram and other members of the family
harassed Laiq Ram so much on that count that he started living in another
village Kathog with one Soda. Gangawati is said to have been pregnant at that
time and later she gave birth to Neel Kanth. It is further said that Laiq Ram
stayed away from home for about 20-22 years. In the meantime Padma Ram
succeeded in getting half share in the property of Gangawati recorded in the
name of Durga Nand. Neel Kanth persuaded his father to came back to the village
in 1994 during Diwali festival. Return of Laiq Ram was not liked by Padma Ram
and Durga Nand and members of his family so much so that they wanted to finish
him and in that regard Padma Ram is said to have asked Gangawati and Neel Kanth
not to come out of their house on 24.10.1995 as he apprehend such an incident
to take place.
accused persons do not dispute that the incident occurred on 24.10.1995 in
which Laiq Ram died and Neel Kanth received injuries but they pleaded right of
self defence. They have also submitted their written statements in defence u/s
233 of Criminal Procedure Code. According to the accused persons land bearing Khasra
No.69, 206/17 and 178 measuring 24 bighas 9 biswas situate in Chak Lafu, Pergna
Dharthi, village Kelvi Jubber belongs to them. Laiq Ram after having come to
the village, conspired to dispossess them from the land. With that end in view
on 24.10.1995 at about 2.00
P.M. while Durga Nand
was working on Plot No.69, Laiq Ram, Gangawati and Neel Kanth trespassed on his
Ram who was armed with a gun fired a shot injuring Durga Nand upon which Durga Nand
assaulted Laiq Ram and Neel Kanth after snatching gun from Laiq Ram and Danda
from Gangawati, Durga Nand and his wife Hukmo Devi and daughter Bimla who
arrived later also received injuries at the hands of Neel Kanth and others. Durganand
also lodged a report which was partially investigated by the police. According
to Durga Nand the fight was between him on one hand and Laiq Ram and Neel Kanth
on the other. Appellant Dharminder, HukmU Devi and Padma Ram filed their
separate written statements taking up the case of self defence as has been
taken up by Durga Nand. According to them Dharminder and Padma Ram were not
present at the time of the actual incident nor they participated in the fight
at all. Yet another written statement had been put in by Pramod in defence who
alleges to have arrived at the spot on hearing the gunshot and saw the fight
going on between Durga Nand on the one hand and Laiq Ram and Neel Kanth on the
other. He took Durga Nand to the hospital.
prosecution, in all, has produced 18 witnesses to prove its case out of whom
PW-4 Gangawati, PW-5 Neel Kanth and PW-14 Smt. Kanta are the eye witnesses.
PW-14 Kanta is the wife of Neel Kanth. PW-6 Shiv Lal lodged the first
information report at Theog Police Station. Pw-12 Dr. Ashwani Tomer examined
the injuries of Neel Kanth and prepared the memo of injuries Ex. PW 12/A. PW13
Dr. Kuldeep Kanwar medically examined Gangawati and prepared injury report but
the same has not been proved by the doctor in the statement. PW-13 Dr. Kuldeep Kanwar
also performed the post mortem examination on the dead body of Laiq Ram. The
post mortem report is Ex.PW13/B. The case was investigated by PW-18 Shri Pratap
Singh. PW-15 Shri Mohan Singh , S.H.O. Police Station Theog stated that he had
partly investigated the report of Durga Nand. He also investigated the case on
the report of Shiv Lal. The remaining witnesses are more or less of formal
accused persons are concerned, they have examined four defence witnesses. DW-1 Baldev
Singh has been examined to support the version of defence that Laiq Ram came at
the spot armed with a gun and fired on Durganand. DW-2, Jagat Ram stated that
on hearing the cries of Hukmo he went to the spot and found Durga Nand being
removed by Hukmo and Dharminder with the help of Baldev and Pramod. He also
stated that he did not see Laiq Ram, his wife and son at the place of
occurrence. DW-3 Shri Yashpal Thakur, Sr. Pharmasist produced record to prove
injuries on Durganand. DW-4 Dr. P.L. Ghonta examined Durga Nand on 3.4.1997 and
recovered pellets from his scrotum.
now peruse the injuries which are said to have been received by both the
injuries of Neel Kanth were examined by PW- 12, Dr, Kuldeep Tomer on 24.10.1995
at 9.10 P.M. at Civil Hospital, Theog. He found:
No.1 Multiple lacerated wounds on scalp which consisted of:
shaped lacerated wound on frontal region each limb 10 cm. X bone deep;
shaped lacerated wounds on right side (Lateral) to Injury No.1 on parietal
region placed at distance of around 5 cm. Each. It is also bone deep;
Lacerated wound on right parietal region 6 cm. X bone deep placed in saggital
plane. Redish coloured;
Curved lacerated wound on occipital region horizontally placed 8 cm. x bone
wound on occipital region 2 cm. X bone deep 5 cm.
injury No. iv.
Lacerated wound on face, right side near right Zygomatic arch. 7 cm. Lateral to
right eye obliquely downwards.
Patterned bruieses 5 in number on back lateral to spine 6 cm. Lateral to the spineon
right side obliquely downwards.
Four bruises on right fore-arm, redish blue in colour 10 cm. X 2 cm swelling
positive in the region of right radius.
Three patterned bruises on back left side 4 cm. Lateral to spine. Redish blue.
Abrasion on right leg 10 cm. Long obliquely downwards in upper 1/3rd and lower
2/3rd lateral aspects.
cm. X 4 cm. Long brownish black, linear abrasion with clotted blood on left
No.1 is noted to be dangerous to life According to the doctor he was semi
conscious when brought to the hospital. The injuries could be caused by sticks
and iron pipe.
Dr. Kuleeep Kanwer Sr. Medical Officer, Civil Hospital, Theog conducted the post mortem
examination on the dead body of Laiq Ram. He found lacerated wound on the left
frontal portion 2" x1/2"x1/2" two inches above the left eye
brow, abrasion on the right hand on the ring and the middle finger size
approximately 2"x2" on the back side.
internal examination the doctor found multiple fracture of the left frontal
parietal region with extensive laceration of the underlying brain with its
covering. In the opinion of the doctor Laiq Ram died of the brain injury.
Dr. Kuldip Kanwar stated to have medically examined PW 4 Gangawati who had
received simple injury but the report was not formally proved while recording
the statement of the doctor.
was medically examined on 24.10.1995 at 5.00 P.M. The doctor found multiple pellet injuries on both legs, thighs and
abdomen. There were burn marks around the injury which were circular and oval
in shape. According to the opinion of the doctor the injuries were caused by
the use of a fire arm, fired from a distance of more than 20 meters.
Durga Nand was also examined by DW-4 Dr. P.L. Ghonta, Registrar, Department of
Urology, IGMC, Shimla. Pellets from scrotum were removed by the doctor who also
stated that it was not dangerous to life.
the facts are concerned, there is no dispute about the date time and place of
occurrence. It is also not in dispute that both sides received injuries at the
hands of each other but according to them in different manner.
crucial question therefore which falls for consideration is as to which party
initiated the assault on the other and in what manner and circumstances.
amicus curiae appearing for the appellants has vehemently urged that the
prosecution has suppressed the injuries of Durga Nand and that by itself is sufficient
to throw out the case of the prosecution since injuries of Durga Nand remain
unexplained. Therefore, their version of having caused injuries to the
complainant side in self defence is but to be accepted.
has been placed on Thakhaji Versus Thakore Kubersing Chamansing and others
(2001) 6 S.C.C. 145. No doubt in view of the observations made in the
above-noted case, prosecution is under duty to explain the injuries on the
accused persons but it has further been observed in Paragraph 17 of the
judgment that non- explanation of injuries of the accused persons does not
necessarily lead to the conclusion that prosecution case is false and must be
further observed that "where the evidence is clear, cogent and
creditworthy and where the court can distinguish the truth from falsehood the
mere fact that the injuries on the side of the accused persons are not
explained by the prosecution cannot by itself be a sole basis to reject the
testimony of the prosecution witness and consequently the whole of the
prosecution case" Another decision which has been referred to is reported
in (2000) 4 S.C.C. 298 - Rajinder Singh and others versus State of Bihar. It is
on the same proposition as laid in the case of Thakhaji (supra). It has been
observed that non-explanattion of injuries on the accused, ipso facto can not
be held to be fatal to the prosecution case. It is also observed, ordinarily
prosecution is not obliged to explain each and every injury on the accused even
though injuries might have been caused during the course of occurrence and they
are minor in nature but where the injuries are grievous, non-explanation of
such injuries attract the Court to look at the prosecution case with little
suspicion on the ground that prosecution has suppressed the true version of the
from what has been indicated above, in so far as the question of the
suppression of the injuries of Durga Nand by the prosecution is concerned, it
may be observed that factually it does not appear to be so. It is true that the
FIR does not mention about the injuries of Durga Nand but the fact cannot be
lost sight of that the FIR was lodged by PW 6 Shiv Lal who was not an eye
witness to the incident. But PW 14 Kanta in her statement under Section 161 Cr.
P.C. had come out with the fact that Laiq Ram had fired gun shot injuring Durga
Nand because of the murderous assault on Neel Kanth by the accused persons. In
the statement in court she appears to have stated that the fire was shot by Dharaminder
but she was confronted with her previous statement which has been brought on
record. In the statement, other witnesses have also stated about the firing on
it cannot be said that there was any suppression as such of the injuries of Durga
Nand. It was disclosed at the first opportunity to the investigating agency in
the statement under Section 161 Cr.P.C.
then submitted that Durga Nand had lodged his report against Laiq Ram but that
case has not been investigated by the police otherwise the case of self defence
as taken up by the appellant would have clearly been made out.
this connection, the Police Inspector had stated that he had started the
investigation on that report which was not completed. It is submitted that Laiq
Ram who was accused in the case had since died, there was no point in further
investigating the case. Without further going into the question whether the
investigation was rightly closed in view of the death of Laiq Ram or not,
suffice it to say that in the facts and circumstances of this case it will make
little difference as it shall be discussed shortly.
to be noted that to prove its case of private defence the appellants have
examined defence witnesses in support of their version.
accused persons including the appellants have also submitted their written
statement in defence u/s 233 Cr.P.C. They are all placed on record. Therefore,
in the present case the merits may have to be examined on the basis of the
evidence on record and as to whether facts and circumstances make out a case of
self defence in favour of the appellants or not. It may also be noted though
not very significantly that Durga Nand also does not seem to have pursued the
matter on the basis of his FIR in the manner whatever may have been available
under the law to do so.
above circumstances and facts of the case, the decision reported in (2002) 1
S.C.C. 71 Kashiram and others versus State of M.P. on the question of non investigating of the report of Durga
Nand will not be helpful to the appellant.
attention has been particularly drawn to Para 22 of the decision that in case
injuries on the accused person had been noticed, the investigating officer
could have made an effort to find out the cause of the injuries so that the defence
version of the incident would have come in the knowledge of the I.O. In the
case in hand we find that the investigation has taken note of the fact which
came to light during investigation of this case particularly regarding the
injuries caused to Durga Nand by gun shot fired by Laiq Ram which was also the
case of Durga Nand in his FIR. The prosecution has proceeded to prosecute the
case on these lines and the effort of PW14 to assign the firing to appellant Dharminder
in the statement before the Court was thwarted by confronting her with her
previous statement. The I.O. had actually investigated the case on the report
of Durganand to some extent. He had both versions before him.
not so in Kashi Ram's case.
High Court considered the relevant provisions of law pertaining to the right of
self defence available to the accused persons as contained under Chapter IV of
the Indian Penal Code and Section 105 of the Evidence Act relating to onus of
proof on the accused persons to establish the plea relating to of exceptions e.g
right of private defence. After considering the relevant law on the point it
has been observed, and in our view rightly, that onus of proof to establish the
right of private defence is not as onerous as that of the prosecution to prove
its case. And where the facts and circumstances lead to pre-ponderance of
probabilities in favour of the defence case, it would be enough to discharge
the burden to prove the case of self defence.
now consider the merits of the present case, in the light of the evidence
available on the record as well as the circumstances and pre-ponderance of
probabilities as emanating from record and surrounding circumstances. The
prosecution witnesses have categorically stated that PW 4 Gangawati was
attacked first by Durganand and others and on her alarm her son arrived at the
spot who was also severely assaulted by Durganand Dharaminder and other accused
persons. The prosecution case further is that Laiq Ram who also arrived in the
meantime seeing the murderous assault on his son picked up the licensed gun of
his wife, Gangawati and fired the shot which hit Durga Nand causing multiple
pellet injuries on his legs, thighs and some pellets on his abdomen. Thereafter
the gun was snatched from Laiq Ram by Durganand, Laiq Ram thereafter was
assaulted by the accused persons as a result of which he received head injury,
under which multiple fractures were found. He succumbed to his injuries and
died at the spot. We have already noticed the injuries received by Neel Kanth
quite a few of them are multiple injuries which in all would not be less than
20 injuries spread all over his body including five on the head itself. A
simple injury was also found on the person of Gangawati.
not understandable, if Laiq Ram had gone determined armed with a loaded gun for
an aggression to deal with Durganand, he would fire a shot from a distance of
about 20 meters, causing injury only on the lower part of the body rather most
of which are on legs and thighs.
circumstance strengthens the case of the prosecution that Laiq Ram had used the
licensed gun of his wife Gangawati to rescue his son Neel Kanth, who was being
mercilessly beaten. It also militates against the story set up by the defence
to claim right of private defence alleging aggression on the part of Laiq Ram.
medical evidence also supports the prosecution case, looking the large number
of injuries which have been found on the person of Neel Kanth including on the
vital parts of the body. According to Durganand he was alone on his side. He dis-armed
Laiq Ram of his gun and Gangawati of her Danda and assaulted Laiq Ram and Neel Kanth.
Later Bimla daughter of Durga Nand and his wife Smt Hukmu Devi also arrived and
they were also assaulted. They are said to have one simple injury each. What seems
to be highly improbable is that Durganand after receiving the gun shot would be
able to cause such large number of injuries to Neel Kanth and also the head
injury with such force to Laiq Ram which caused multiple fractures of his head
resulting in instantaneous death at the spot.
also be noted that Neel Kanth would obviously be younger in age to Durganand.
to the doctor Durganand was brought to the hospital, who was then crying with
agonizing pain. Later pellets were also recovered from his scrotum. In such a
condition it is not possible that Durganand would be able to snatch Dandas and
gun from the complainant party and would also assault in the manner indicated
above. It is not a question of number of injuries caused to each side, at times
an aggressor may receive more injuries than the defenders but the case in hand
is not a case of that kind. Sequence of events as given out in the prosecution
case also gets support from the medical evidence as well as broad probabilities
leading to the conclusion that Smt. Gangawati and Neel Kanth had been assaulted
first by Durganand and Dharminder, and Laiq Ram arrived later to rescue his son
and by that time his son had already received a large number of injuries.
accused persons may have been successful in dis arming Laiq Ram and to hit on
his head with such a great force that it proved to be a decisive blow causing
injury sufficient to cause death in the ordinary course. Neel Kanth must have
received injuries before and not after Durganand was fired at and received fire
arm injuries. We don't attach much significance to the one simple injury
received by Gangawati and Bimla each so as to make it necessary to deal with
them in detail. It only indicates their presence at the spot at one or the other
supports prosecution case that Gangawati was assaulted first at the initial
true that DW 1 Baldev Singh supports the version given by Durga Nand but DW 2 Jagat
did not support the defence case, as when he arrived, he found Durganand being
removed from the spot, he had not seen any assault on any one.
difficult to place reliance on the statement of DW 1 Baldev Singh.
prosecution case is also supported by the circumstance that at the time Laiq
Ram was not present at the scene then it would be better possible for Durganand
and Dharminder to cause such large number of injuries to Neel Kanth numbering
20, all over the body. It could not be possible after Laiq Ram had arrived and
fired the shot and Durganand had received the injuries.
another feature of the defence case that Laiq Ram wanted his property back and
came determined for the purpose is not borne out from any circumstances. There
is no dispute that Laiq Ram had left the village and the property and according
to prosecution in Sheer disgust. He remained away from home for about 20-22
years. He did not return to the village at his own or for the love of his
property but on pursuation of his son Neel Kanth i.e. for the affection of his
nowhere indicated that during 20 - 22 years or during the period of one year
after he came back to the village, he may have moved any authority or court
agitating against the entries in the records made in the name of Durganand, or
may have asked them to return the property .
that he may have made any effort earlier to get back the property. In this
background it does not appeal to reason that one fine morning he would suddenly
go armed with a gun to take possession of the property. On the other hand there
is evidence on the record to indicate that none else but Padama Ram had told Neel
Kanth that they may not go out of the house on that day as accused persons were
not happy on the return of Laiq Ram and some trouble was in the offing on the
fateful day. The above discussion clearly shows that the incident occurred in
the manner indicated by the prosecution and pre-ponderance of probabilities
also do not support the defence case.
the reasons indicated above we find that the Court of Sessions as well as the
High Court committed no error in recording the conviction of Dharminder and Durga
appeal against acquittal is concerned, PW14 Kanta had stated that Padma Ram was
in the house. A finding has been recorded that Pramod and Padma Ram do not seem
to have participated in the assault and they seem to have arrived at the scene
of occurrence later on. So far as Smt. Hukmu is concerned, it was found that
though she was present and participated yet her involvement has not been
satisfactorily established. We do not find it a case fit for interference with
the acquittal of the respondents which has been recorded and affirmed by the
High Court In the result all the appeals - viz filed by Durga Nand and Dharminder
against their conviction and the one filed by the State of Himachal Pradesh
against the acquittal of Hukmu Devi, Pramod and Padma Ram are devoid of merit
and they are dismissed.