Vivek Singh Thakur DECISION
Vivek Singh Thakur, J.
1. The instant appeal has been preferred by the accused-appellant Ranjit Singh @ Chhotu, against the judgment dated 7.4.2017, passed by learned Additional Sessions Judge (II), Mandi, District Mandi, Himachal Pradesh (Camp at Jogindernagar), in Sessions Trial No. 63/2015, titled as State v. Ranjit Singh alias Chhotu & others, in case FIR No. 34/2015, registered at Police Station, Jogindernagar, under Sections 451, 323, 325, 307 read with Section 34 of the Indian Penal Code (herein after referred to as IPC), wherein appellant-accused has been convicted under Sections 451, 325 & 307 IPC, whereas co-accused Ramzan and Sanjeev Kumar alias Sanju have been acquitted.
2. The trial Court has awarded sentence to the appellant as under:
| Section | Sentence | Fine |
| 351 IPC | Simple Imprisonment for one year. | ` 2,000/- and in default of payment to undergo simple imprisonment for a period of one month. |
| 325 IPC | Simple Imprisonment for three years. | ` 5,000/- and in default of payment to undergo simple imprisonment for a period of one month. |
| 307 IPC | Simple Imprisonment for seven years. | ` 10,000/- and in default of payment to undergo simple imprisonment for a period of six months. |
3. Investigating Agency was set in motion on the basis of telephonic call received in Police Station, Jogindernagar, from the Office of Medical Officer, Civil Hospital, Jogindernagar. The said telephonic call was recorded in the Daily Station Diary, vide GD Entry No. 22(A) (Ex. PW-9/A), whereby it was informed that one injured person has been brought to the Civil Hospital, Jogindernagar, in Ambulance 108, whereupon Investigating Officer PW-13 SI Yog Raj, alongwith ASI Rajesh Kumar, PW-14 HHC Prakash Chand and HHC Praveen Kumar, rushed to the Hospital in Government vehicle. On reaching Hospital at about 11 a.m., he moved an application Ex. PW-13/A to the Medical Officer for issuance of MLC of Injured Bhawani Singh and for opinion about fitness of injured to make statement. On opinion of the Medical Officer that injured was unfit for making statement, statement Ex. PW-1/A of mother of victim, i.e. PW-1 Ram Piari was recorded under Section 154 of the Code of Criminal Procedure (hereinafter referred to as Cr.P.C.) and the same was sent through HHC Prakash Chand to the Police Station for registration of FIR and on the basis of the said statement (Ruka) FIR Ex. PW-12/A was recorded by PW-12 ASI Sukesh Kumar and after making endorsement Ex. PW-12/B on Ruka, it was sent back to the Investigating Officer.
4. PW-1 Ram Piari, in her statement referred supra, had stated that she was an Agriculturist and her husband had expired 5-6 years ago and that injured Bhawani Singh, aged 25 years, was her son. She had further stated that on 6.3.2015 at about 9.30 p.m., her son Bhawani Singh alongwith his friends Ranjit Singh alias Chhotu (Servant of Malkiat Singh), Ramzan and Sanjeev Kumar alias Sanju, all accused, came to her house and started dancing and singing in Courtyard and after some time while doing so, Ranjit Singh @ Chhotu had caught hold of neck of her son Bhawani Singh on some issue and Ramzan and Sanjeev Kumar alias Sanju had also joined the scuffle and when she tried to rescue her son from them they pushed her and took her son Bhawani Singh alongwith them towards their house and thereafter she slept. She had further stated that on waking up next morning, at about 5 a.m., when she did not find her son at home, she went to the house of Ramzan and Sanjeev Kumar alias Sanju, but her son was not found there, and when she was coming back to her house, her neighbour Kamla met her near the house and disclosed that one boy was lying unconscious near the school, whereupon she went to see and found her son there in naked condition with injuries on his mouth, ear, head, etc. wherefrom blood was oozing. According to her, she called Ward Member PW-3 Harnam Singh and other villagers had also come and thereafter Ambulance 108 was called and her son was taken to the Hospital for treatment.
5. It is further prosecution case that on 7.3.2015 supplementary statement Ex. PW-13/D of PW-1 Ram Piari was also recorded, under Section 161 Cr.P.C., when she was associated in the investigation, spot inspection, preparation of spot maps and taking photographs, wherein it was also stated that her son Bhawani Singh had been beaten by Ramzan, Ranjit Singh alias Chhotu and Sanjeev Kumar @ Sanju, because on 7th Morning, she had also inquired Ranjit Singh alias Chhotu about her son and had noticed scratch marks on his neck and on back of his sweater which was also worn by him previous night she had noticed soil, blood, etc.
6. Initially, case was registered under Sections 323 and 506 IPC. After recording of supplementary statement Ex. PW-13/D of complainant, all accused were associated in the investigation and accused Ranjit Singh @ Chhotu was also got medically examined and as per MLC Ex. PW-6/E, minor injuries were found on his person. According to prosecution case on 21.3.2015, accused Ranjit Singh @ Chhotu had produced Sweater Ex. P-2 to the Police in presence of injured Bhawani Singh and PW-5 Sarika, which was taken in possession vide Memo Ex. P-2/A and sealed in Parcel Ex. P-1 with seal "T", sample whereof Ex. PW-2/B was also taken on separate piece of cloth. Injured Bhawani Singh was discharged from the hospital on 14.3.2015 but his treatment was continue and he was not able to speak due to injuries sustained in his jaw. He had identified the sweater produced by accused Ranjit Singh @ Chhotu.
7. After obtaining final opinion of the Doctor, on 19.3.2015, wherein Injuries No. 1 to 4 were found simple and Injuries No. 5 to 8 grievous, Section 325 IPC was added and on 22.3.2015, accused were arrested and after interrogation were released on bail.
8. On the basis of statement of injured, offence under section 307 IPC was also found to have been committed and, therefore, Section 307 IPC was also added and accused Ranjit Singh @ Chhotu was arrested.
9. As per prosecution case, on 26.4.2015, during interrogation, accused Ranjit Singh @ Chhotu had made disclosure statements Ex. PW-2/C and Ex. PW-2/E, in presence of injured Bhawani Singh and PW-7 Malkiat Singh, disclosing therein that he could get stone recovered with which he had smashed the head of the victim and he could also cause recovery of purse of victim from a forest of pine trees where he had hidden the same. In pursuance to these disclosure statements, stone Ex. P-4 was identified, recovered, seized and sealed in Parcel Ex. P-3, vide Memo Ex. PW-2/D and purse Ex. P-6, identified, recovered, seized and sealed in Parcel Ex. P-5, were taken in possession vide Memo Ex. PW-2/G. On 26.4.2015, victim Bhawani Singh had also produced documents relating to his treatment which was also taken in possession vide Memo Ex. PW-2/J in presence of Constable Rakesh Kumar and PW-7 Malkiat Singh.
10. During investigation, MLC Ex. PW-6/C of injured Bhawani Singh was also obtained on 7.3.2015 and for two injuries, victim was referred for opinion of ENT Expert, who had opined that Injury No. 4 was simple, Injury No. 8 was grievous caused by blunt object and with regard to other injuries, final opinion was that Injuries No. 1,2 and 3 were simple in nature and Injuries No. 5,6 and 7 were grievous in nature caused with blunt object. On application Ex. PW-6/D, submitted by PW-13 Yog Raj to PW-6 Dr. Jayant, the said Doctor had opined that the injuries were on head and face, which were vital parts of body, and for that it could be stated that the injuries No. 5 to 8 were endangering the life of patient.
11. Sweater Ex. P-2 and stone Ex. P-4, alongwith blood sample of Bhawani Singh, were sent for chemical examination by PW-14 MHC Kamlesh Kumar through PW-15 HHC Prakash Chand, vide RC No. 19/15, dated 7.5.2015. As per FSL Report Ex. PR, human blood of Group AB was detected on sweater of accused Ranjit Singh @ Chhotu and in blood sample of Bhawani Singh. Traces of blood were also detected on stone, but it was insufficient for further serological examination.
12. Prosecution has put reliance on production of sweater, disclosure statements under Section 27 of the Evidence Act, leading to recovery of stone and purse by accused, in presence of witnesses. It is expected from the Investigating Officer to associate independent witnesses to such production, disclosure statements as well as recovery of articles, if any, in pursuant to disclosure statements.
13. In present case, injured Bhawani Singh has been cited as one of two witnesses in the production Memo Ex. PW-2/A, disclosure statements Ex. PW-2/C and Ex. PW-2/F and also in recovery and seizure Memos Ex. PW-2/D and Ex. PW-2/G. Despite corroboration of the prosecution case on this point by him, his own evidence is not credible and second independent witness has not supported the version of prosecution. PW-5 Sarika, an independent witness to production of sweater vide Memo Ex. PW-2/A, has stated that on 21.3.2015, she remained associated with the police when accused Ranjit Singh had produced one blood stained sweater to the Police, which was sealed and taken in possession. She has identified her signature in Circle 'A', but in cross-examination she has admitted that police had come before her arrival and the sweater Ex. P-2 was shown by the police to her and she had signed Ex. PW-2/A and parcel Ex. P-1 in Police Station, Jogindernagar. She is not related to accused Ranjit Singh @ Chhotu, in any manner, and she had not been further cross-examined by the prosecution. Her explanation in the cross-examination creates doubt about the prosecution version with respect to production of sweater. Accused Ranjit Singh @ Chhotu is resident of Jammu and Kashmir, whereas co-accused Ramzan and Sanjeev Kumar are residents of village Dhelu under Police Station, Jogindernagar, i.e. village of injured and other private witnesses.
14. In disclosure statements Ex. PW-2/C and Ex. PW-2/F, PW-2 Bhawani Singh and PW-7 Malkiat Singh are witnesses. Unlike PW-2 Bhawani Singh, PW-7 Malkiat Singh has not supported the prosecution case, rather in examination-in-chief, he has stated that nothing had happened in his presence and he had just signed the papers. After being declared hostile, he was subjected to cross-examination by the Public Prosecutor, wherein again he has denied all the suggestions put to him, except admitting the signatures on the documents. He has denied that he remained associated in the proceedings of Memos Ex. PW-2/B to Ex. PW-2/J.
15. In recovery Memo Ex. PW-2/D, only one witness PW-7 Malkiat Singh has been cited whereas PW-2 Bhawani Singh has signed it as identifier of the stone and in place of second witness signature of accused is there. The stone has been recovered from a public place and that too from the place where PW-2 Bhawani Singh was found unconscious. Therefore, the said place as well as stone was in notice of not only the complainant, injured and the Investigating Officer, who had visited the spot on the very next day of the incident and had prepared the spot map Ex. PW-13/C-1, but also to villagers, including Panchayat Member, who had gathered on the spot when injured was found there. It is the same place which has been shown place of recovery of stone in Ex. PW-13/F. Therefore, this piece of evidence is also of no help to the prosecution.
16. So far as recovery of purse is concerned, for want of corroboration from independent witnesses, it is also under cloud.
17. It is also case of prosecution that PW-2 Bhawani Singh was found in naked condition. Who unclothed him, has not been clarified and further as to whether clothes of PW-2 Bhawani Singh were recovered or not is also not stated by the Investigating Officer in his conclusion as well as statement. Whereas PW-1 Ram Piari has stated that clothes of PW-2 Bhawani Singh were found inside the boundary wall of the school. When clothes were found at a place adjacent to the place where PW-2 Bhawani Singh was found unconscious, no reason or purpose, apparently, appears to be there to hide the purse in the jungle, more particularly when injured was left lying on the side of the road. Not only on this point, but at certain other stages also, it appears that there is padding in the story by the Investigating Officer or the complainant but true facts have not been disclosed.
18. Undoubtedly, human blood of Group AB had been detected on sweater, stated to have been produced by accused Ranjit Singh @ Chhotu, which matches with the blood sample of Bhawani Singh, but the evidence to rule out any other possibility is incomplete. It is not clear what was the blood group of accused Ranjit Singh @ Chhotu, so as to clarify that the blood found on the sweater was only and only of injured Bhawani Singh. This report creates ground to suspect that accused Ranjit Singh @ Chhotu might have been involved in commission of the offence, but for want of investigation about blood group of accused, it is not a conclusive proof, more particularly when production of the sweater by accused Ranjit Singh @ Chhotu has not been proved on record in accordance with principles of criminal jurisprudence. Blood traces detected on the stone, definitely indicate that the injuries might have been caused with that stone, but again it is not conclusive proof.
19. It is true that medical evidence as well as chemical analysis report are corroborative pieces of evidence and conviction can be maintained even in absence of such evidences, if oral depositions of the complainant and other witnesses are found to be reliable, trustworthy, credible, to establish commission of offence beyond reasonable doubt. Even conviction can be on the basis of sole testimony of injured or eye witnesses depending upon quality thereof.
20. In examination-in-chief, PW-1 Ram Piari, mother of injured PW-2 Bhawani Singh, has not uttered any word accusing other two co-accused Ramzan and Sanjeev Kumar for causing injuries to the victim. However, in cross-examination by the learned Assistant Public Prosecutor, PW-1 Ram Piari has admitted it to be correct to suggest that Sanjeev Kumar @ Sanju and Ramzan had also given beatings to her son Bhawani Singh. Further, a circumstance of noticing scratch marks on the body of accused Ranjit Singh @ Chhotu by PW-1 Ram Piari has been brought on record by way of supplementary statement (Ex. PW-13/D) of PW-1 Ram Piari, wherein it is recorded that next morning when she asked Ranjit Singh about her son, she had noticed scratch marks on his neck and the sweater worn by him yester night was also torn from the side and on the back of it she had noticed soil and blood. However, in Court, this witness did not state these facts in her examination-in-chief in the Court and even to the suggestion put to her by learned Assistant Public Prosecutor, she had replied negatively by denying said fact.
21. Further, PW-1 Ram Piari, in her cross-examination by the learned Defence Counsel, had expressed her ignorance as to whether her son and his friends had consumed liquor, whereas her son, injured PW-2 Bhawani Singh, in cross-examination by defence, has admitted that on 6.3.2015 they, i.e. he and all accused, had consumed liquor in the compound of liquor vend and further that he had disclosed to the police that accused Ranjit Singh @ Chhotu had caught his mother from her hand and had twisted her arm.
22. PW-3 Harnam Singh, a Member of Panchayat, who had informed the police telephonically, in his cross-examination stated that PW-1 Ram Piari had disclosed that her son had consumed liquor on last evening and he was causing noise after taking liquor and further that at that time Ram Piari had not disclosed name of any accused to him and he had also asked Ram Piari about the reason for not reporting the matter to him last evening. He has also admitted the suggestion that PW-1 Ram Piari and her son are habitual drunkard.
23. PW-7 Malkiat Singh, in cross-examination, has put forth a new story of quarrel taken place between mother and son, i.e. PW-1 Ram Piari and PW-2 Bhawani Singh, and receiving of injuries by PW-2 Bhawani Singh by slipping from the slope. His version does not inspire confidence for the reason that he is not only master of accused Ranjit Singh @ Chhotu but had also stood surety for him when he was arrested before addition of Section 307 IPC, during investigation.
24. Considering entire evidence on record, though there are certain improvements in the statements of PW-1 Ram Piari and PW-2 Bhawani Singh and also there are traces of padding by the prosecution, particularly at the time of production and recovery of sweater, stone and purse, however, there is sufficient evidence on record, particularly in the statement of PW-2 Bhawani Singh that accused Ranjit Singh @ Chhotu had caused injuries to him. Statement of victim is also reliable on this count for the reason that he has no enmity with accused Ranjit Singh @ Chhotu, rather he was having friendly relations with accused which is proved on record, as it is also suggested to victim and admitted by him in the cross-examination by the defence that all accused were his friends.
25. Trial Court has acquitted other two co-accused Ramzan and Sanjeev Kumar @ Sanju and no appeal has been preferred by the State against them. Otherwise also, PW-1 Ram Piari and PW-2 Bhawani Singh, one of which is the victim, have not stated anything against them with respect to the injuries received by PW-2 Bhawani Singh.
26. So far as accused Ranjit Singh @ Chhotu is concerned, there is ample evidence on record, in the statement of PW-2 Bhawani Singh, for arriving at a conclusion that he had caused injuries to PW-2 Bhawani Singh, which are duly corroborated by medical evidence.
27. Accused Ranjit Singh @ Chhoto had been convicted under Sections 307, 325 and 351 IPC. For the evidence discussed herein before and referred by the trial Court, as available on record, I find no evidence to establish that accused Ranjit Singh @ Chhotu is guilty of commission of offence under Section 307 IPC. Relevant portion of Section 307 IPC reads as under:
"307. Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty or murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to [imprisonment for life], or to such punishment as is hereinbefore mentioned."
28. Firstly, the opinion of Expert expressed on Ex. PW-6/B is not conclusive so as to draw inference that Injuries No. 5 to 8 were sufficient to endanger the life of the victim as he has given opinion by stating that the injuries received by the victim were on head and face, which are vital parts of the body, so it could be stated that Injuries No. 5 to 8 were endangering life of patient.
29. Essential ingredient to convict an accused under Section 307 IPC is that he should have done the act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder. In present case, no motive and intention to cause death has been brought on record. Contrary to that, it has come on record that victim and accused persons were friends and they had consumed liquor together and thereafter enjoying it by dancing and raising noise in the courtyard of victim and on objection raised by the mother of the victim, i.e. PW-1 Ram Piari, they had left the place and on the next day victim was found lying on ground in the village in injured condition. No reason for intention to cause death has been brought on record. The evidence is also lacking about the knowledge of accused that act, committed by him would have caused death of victim. In any case, it has been proved on record, beyond reasonable doubt, that accused Ranjit Singh @ Chhotu had caused grievous injuries to the victim voluntarily by using stone as a weapon of offence, which can be used for causing death also and, therefore, essential ingredients for convicting the accused under Section 326 IPC are available on record. It is a settled law that person charged for higher offence can be punished for lower offence. Therefore, conviction under Section 307 IPC is converted into conviction under Section 326 IPC.
30. Record reveals that accused Ranjit Singh @ Chhotu was arrested on 24.4.2015. Vide order dated 7.10.2015, passed by Additional Sessions Judge (II), Mandi, he alongwith co-accused was enlarged on bail, subject to his furnishing personal and surety bonds in the sum of ` 20,000/- each, to the satisfaction of learned Judicial Magistrate 1st Class, Jogindernagar, within thirty days. On further perusal of record, it appears that bail bonds on behalf of co-accused were furnished on 13.10.2015, whereas no such bail bonds were furnished on behalf of accused Ranjit Singh @ Chhotu and as a result thereof he continued to be in custody till final decision of the trial, wherein he has been convicted and sentenced as referred supra and now serving the sentence in sequel thereto.
31. Accused Ranjit Singh @ Chhotu was convicted under Section 307 IPC and sentenced to undergo simple imprisonment for a period of 7 years and pay fine of ` 10,000/- and in default of payment thereof to further undergo simple imprisonment for a period of six month. As discussed supra, since conviction of accused Ranjit Singh @ Chhotu under Section 307 IPC has been converted into conviction under Section 326 IPC, he is now sentenced to imprisonment already undergone alongwith fine of ` 10,000/- and in default of payment thereof to further undergo simple imprisonment for a period of four months. Conviction and sentence under Sections 351 and 325 IPC shall remain as it is as awarded by the trial Court. In case of production of proof of payment of fine, accused Ranjit Singh @ Chhotu shall be released forthwith and in case the fine is or has not been deposited, he shall serve the sentence as awarded for default in payment of fine.
With the aforesaid modification in the judgment of the trial Court, the appeal is disposed of. Pending application, if any, also stands disposed of.
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