JUDGMENT
R.L. Khurana, J.
1. The abovenoted three appeals arising out of the judgment dated 2-12-2000 of the learned Additional Sessions Judge, Shimla, in Sessions Trial No. 16-S/7 of 1996 are being disposed of together by this single judgment.
2. Each of the three appellants, hereinafter referred to as the accused, stands convicted for the offences under Section 452, 307 and 302 read with Section 14, Indian Penal Code and sentenced as under :–
S. Offence Sentence
No.
1. 452/34, I.P.C. Rigorous imprisonment
for two years and fine
of Rs. 2000/-. In default
of payment of fine, simple
imprisonment for three months.
2. 307/34, I.P.C. Rigorous imprisonment
for seven years and fine
of Rs. 5000/-. In default
of payment of fine, simple
imprisonment for six months.
3. 302/34, I.P.C. Rigorous imprisonment
for life and fine of Rs.
5000/-. In default of
payment of fine,
simple imprisonment
for six months.
3. Briefly, the prosecution story may be thus stated. Accused Mansha Ram is the son of PW 10 Ganga Ram, while accused Sanjay Kumar and Inder Singh alias Bhola are the sons of accused Mansha Ram. PW. 11 Tula Ram had purchased 16 Bighas of land in the year 1985 from PW. 10 Ganga Ram. Accused Mansha Ram had assailed such sale of land by his father PW. 10 Ganga Ram by way of a civil suit. Such suit was dismissed by the trial Court and an appeal was preferred by accused Mansha Ram before the District Judge, Shimla.
4. On the night intervening 21/22-10-1995 at about 1 a.m. the three accused came to the residence of PW. 11 Tula Ram in Kasumpti. They knocked at the door and thereafter after pushing the door open, they entered the room and declared that they would kill PW. 11 Tula Ram. Accused Mansha Ram at that time was armed with an iron angle while the other two accused were armed with iron rods. Accused Mansha Ram gave a blow with the iron angle on the head of PW. 11 Tula Ram. He also caused injuries to PW. 10 Ganga Ram and Mathu Ram (the brother of PW. 11), both of whom at the relevant time were with PW. 11 Tula Ram. Accused Sanjay Kumar and Inder Singh also joined their father accused Mansha Ram in beating PW. 10 Ganga Ram and Mathu Ram. As a result of the assault, PW. 11 Tula Ram fell down on the ground unconscious. He regained consciousness on the following morning when he found PW. 10 Ganga Ram and Mathu Ram lying in a pool of blood with injuries on their person. Mathu Ram was dead.
5. On 22-10-1995 at about 8 a.m. PW. 1 Shyam Lal, Halqua Patwari, who was residing in the upper storey of the same building, noticed PW. 10 Ganga Ram and PW. 12 Tula Ram in an injured condition in the Verandah. He came down and inquired about the injuries on the person of PW. 10 and PW. 11. He was informed by PW. 11 Tula Ram about the beatings given to them on the previous night. PW. 1 Shyam Lal after recording a report in his Rojnamcha Wakiyati, copy of which is Ex. PW. 1/H went to Police Post, Kasumpti to report the matter. On the basis of such report, PW. 20 Sub-Inspector, Police Station, East Shimla came to the spot and recorded the statement, Ex. PW 3/A, of PW. 11 Tula Ram under Section 154, Code of Criminal Procedure. A case for the offences under Section 452, 307 and 302 read with Section 34, Indian Penal Code, thus came to be registered vide FIR No. 172/ 995 (Ex. PW, 5/A).
6. During the course of investigation the two injured, namely, PW. 10 Ganga Ram and PW. 11 Tula Rarn were subjected to medical examination. PW. 12 Dr. Dev Raj Sharma, who medically examined the two injured, found the following injuries on their person:–
Re : Ganga Ram.
(i) Incised wound 12 cm. x 4 cm. with a piece of bone coming out, margins irregular extending from right frontal to temporal region with clotted blood over it.
(ii) One 2 cm linear cut incised wound over right eye brow with clotted blood and irregular margins.
(iii) Injured right eye with bleeding therefrom. Iris prolapsed with blood in the cavity (anterior Chamber of the eye). Conjuctiva congested.
(iv) 2 cm linear cut injury on right side of chin with regular margins 1/4 cm. x 1/4cm.
(v) Multiple bruises under right and left eyes.
(vi) Three bruises on left forearm, posterior aspect 3 cm x 4 cm each.
7. Upon x-ray examination in respect of injury No. (1) above, fracture of right frontal and parietal bones was detected. Injury No. (1) was opined to be grievous while other injuries were opined to be of simple nature. PW. 12 was further of the opinion that injuries No. (i) to (iv) could be possible with iron angle and iron rod.
Re : Tula Ram
(i) Incised wound 8 cm x 4 cm x 1 cm with regular margins extending from frontal to temporal bone right side with clotted blood.
(ii) Haemorrhage right eye with sub-conjuctivel heamorrhage with haemotama, black eye right side, lid eodove was present.
(iii) Horizontal cut pinna incised wound with tag hanging blow-regular margins.
(iv) A cut lacerated wound on lateral side of right arm.
(v) 1 cm cut injury on right side of chin having irregular margins.
8. X-Ray examination of injury No. (i) above revealed fracture of right frontal parietal and temporal bones. Injury No. (i) was opined to be of grievous nature while injuries No. (ii) to (v) were opined to be of simple nature. PW. 12 also opined that injury No. (i) could be possible with iron angle and remaining injuries were possible with iron rod.
9. The post mortem examination of the dead body of the deceased Mathu Ram was carried out by PW. 19 Dr. V. K. Mishra. The following ante mortem injuries were found on the person of the deceased :–
(i) Black eyes both sides.
(ii) Bleeding from both nostrils.
(iii) A linear lacerated wound with abrasion and underlined contusion, antero posterior on right frontal parietal region 9 cm x1/2 cm x bone deep, 2 cm above the right eye-brow and 3 cm above the upper border of right pinna. Dry clotted blood was present.
(iv) Multiple abrasions were present over the middle of forehead near receding hair line on the area of 3 cm. x 2 cm. brown in colour.
(v) A lacerated wound at the left angle of mouth measuring 3 cm x 1 cm x 1/2 cm with dry clotted blood around the mouth.
(vi) Both upper and lower lips were swollen and contused on the internal surface. Bluish in colour.
(vii) Fracture Maxilla from centre to Ist premolar on left side and from IInd premolar to IIIrd molar in two different places and on the right side half maxilla was present from right central incisor to Illrd molar in one piece.
(viii) Fracture mandible from central incisor left side to IInd premolar.
(ix) A contusion with abrasion on the lower border of left side of mandible 4 cm x 2 cm, blue in colour.
(x) Multiple abrasions on the dorsal aspect of left elbow 2 cm x 2 cm in size, brown in colour,
Cranium and Spinal Cord
On reflecting scalp :–
(a) A contusion on right side of scalp in temporo-frontal region 6 cm x 4 am x 1/2 cm in size dark brown in colour.
(b) Fracture right temporo-frontal bone — viz. depressed two parallel irregular fracture lines on the right side of frontoparietal bone with intervening area of 4 cm.
(c) A lacerated wound of 1/2 cm x 1/2 cm x 1/4 cm on the right temporal lobe corresponding to the fracture.
(d) Subdural haemorrhage on right temporal lobe on the area of 8 cm x 4 cm.
(e) Fracture cribriform plate both sides extending to sella turtica.
10. In the opinion of PW. 19 the deceased had died due to shock as a result of ante mortem head injury.
11. The investigation officer (PW. 20) took into possession iron angle Ex. P2 from the spot. The blood stained clothes of PW. 11 Tula Ram were also taken into possession. Blood at the spot was also taken into possession. The blood stained bed sheets Ex. P. 11 to P. 13 along with blood stained clothes of PW. 10 Ganga Ram were seized and taken into possession.
12. Accused Mansha Ram was arrested on 23-10-1995. He handed over his sweater Ex. P. 20, pant Ex. P. 21 and shirt Ex. P. 22, which were blood stained to the police and the same were taken into possession vide memo Ex. PW 3/B. He also produced shirt Ex. P. 28 and Pajama Ex. P. 29 of accused Sanjay Kumar which were taken into possession vide memo Ex. PW. 19/J.
13. Accused Sanjay Kumar, who was arrested on 27-10-1995, while in custody made a disclosure statement Ex. PW. 8/A leading to the discovery of iron rod Ex. P. 4 which was taken into possession vide memo Ex. PW. 8/B.
14. Accused Inder Singh came to be arrested on 2-11-1995. He whilst in custody made a disclosure statement Ex. PW. 14-A leading to the discovery of iron rod Ex. P. 23, which was taken into possession vide memo Ex. P. 14/C.
15. Articles seized during the course of investigation were sent for chemical examination. Human blood was found on such articles. On completion of investigation, the three accused were sent up for trial. Each of the three accused was charged for the offence under Section 460, 307 and 302 read with Section 34, Indian Penal Code. The three accused pleaded not guilty and claimed trial.
16. The defence of the accused was that of denial and false implication due to enmity as a result of litigation with PW. 11 Tula Ram.
17. The prosecution in support of its case, examined 20 witnesses in all. No defence was led by the accused.
18. The learned trial Judge on consideration of the evidence led before him convicted and sentenced each of the three accused for the offences under Section 452, 307 and 302 read with Section 34, Indian Penal Code, as aforesaid.
19. We have heard the learned Counsel for the parties and have also gone through the record of the case.
20. At the very outset, it may be stated that the case of the prosecution has been fully supported by PW. 10 Ganga Ram and PW. 11 Tula Ram, the two eye-witnesses and who had themselves sustained multiple injuries (grievous and simple) due to the assault by the three accused.
21. While assailing the conviction and sentence imposed upon each of the three accused, the learned Counsel for the accused raised the following points :–
1. PW. 10 Ganga Ram and PW. 11 Tula Ram could not have identified the assailants. The case of the prosecution as to the identification of the accused is a result of deliberations, concoctions and planning;
2. Taking into possession of clothes of Mansha Ram accused by the investigation officer vide Ex. P. 3/B is highly suspicious and the recovery is full of doubts;
3. Disclosure statement Ex. P. B/A of accused Sanjay Kumar is fabricated and manufactured document. Such statement being not voluntary, no reliance can be placed in pursuance thereof;
4. Possibility cannot be ruled out that PW. 10 Ganga Ram and PW. 11 Tula Ram might have inflicted injuries on the deceased Mathu Ram and they themselves might have sustained the injuries at the hands of the deceased during the assault and they in order to save themselves might have falsely implicated the accused.
22. Admittedly accused Mansha Ram is the son while accused Sanjay Kumar and Inder Singh are the grand sons of PW. 10 Ganga Ram. The accused were also well known to PW. 11 Tula Ram. According to the prosecution, the occurrence took place at about 1 a.m. on the night intervening 21 / 22-10-1995. PW. 10 Ganga Ram, PW. 11 Tula Ram and the deceased Mathu were sleeping together in the room when the three accused after making a forcible entry into such room started assaulting PW. 11 Tula Ram and when PW. 10 Ganga Ram and Mathu deceased tried to intervene they were also assaulted.
23. Even if it be assumed that the light in the room was not on, there is no evidence on the record to show that it was pitch dark and nothing was visible.
24. In Nathuni Yadav v. State of Bihar, (1998) 9 SCC 238 : (AIR 1997 SC 1808) where murder had taken place on a moonless night, a contention was raised on behalf of the accused therein that there was no possibility at all for the witnesses to identify the assailants as it was a moonless night and there was no lamp burning in the vicinity and hence it would have been pitch dark when the incident happened. It was held (para 8) :
“We have considered the said contention from all its angles. Even assuming that there was no moonlight then, we have to gauge the situation carefully. The proximity at which the assailants would have confronted with the injured, the possibility of some light reaching there from the glow of stars, and the fact that the murder was committed on a roofless terrace are germane factors to be borne in mind while judging whether the victims could have had enough visibility to correctly identify the assailants. Over and above those factors, we must bear in mind the further fact that the assailants were no strangers to the inmates of the tragedy-bound house, the eye-witnesses being well acquainted with the physiognomy of each one of the killers. We are, therefore, not persuaded to assume that it would not have been possible for the victims to see the assailants or that there was possibility for making a wrong identification of them. We are keeping in mind the fact that even the assailants had enough light to identify the victims whom they targeted without any mistake from among those who were sleeping on the terrace. If the light then available, though meagre, was enough for the assailants why should we think that the same light was not enough for the injured who would certainly have pointedly focused their eyes on the faces of the intruders standing in front of them. What is sauce for the goose in sauce for the gander.”
25. The above ratio has been reiterated in Bharosi v. State of M. P. (2002) 7 SCC 239 : (2002 Cri LJ 4322) and it was held that since the accused were known to the witnesses they could be identified even in the faint darkness.
26. In the present case as well in the absence of any material to show that it was pitch dark and in view of the fact that the three accused were very well known to PW. 10 Ganga Ram and PW. 11 Tula Ram, they were capable of being identified even in the faint darkness. Besides, it has come in the evidence of PW. 11 Tula Ram that he had switched on the light. No cross-examination was addressed on behalf of the accused on this point. Therefore, the version of PW. 11 that he had switched on the light remained unrebutted.
27. Ex. PW. 3/B is the recovery memo vide which clothes of accused Mansa Ram, that is, sweater Ex. P. 20, Pant P. 21 and shirt P. 22 were taken into possession on the same having been produced by him before the investigation officer in the presence of PW. 3 Head Constable Nirmal Dass and Chet Ram. Vide report of the Forensic Science Laboratory Ex. PW. 9/M stains of human blood were found on such clothes Ex. P. 2 to P. 22, though the group of such human blood could not be ascertained.
28. The accused Mansha Ram in his statement recorded under Section 313, Code of Criminal Procedure, in answer to question No. 23 though has denied that his clothes were taken into possession by the police, has not denied that clothes Ex. P. 20 to P. 22 belong to him.
29. PW. 3 Head Constable Nirmal Dass has categorically deposed that clothes Ex. P. 20 to P. 22 were taken into possession from accused Mansha Ram on the same having been produced by him in his presence. The statement of PW. 3 has remained unrebutted and uncontroverted inasmuch as he has not been cross examined on this aspect of the case. Nor it was ever suggested that either Ex. P 20 to Ex. P22 neither belong to accused Mansha Ram nor the same were produced by him. The contention raised on behalf of the accused that taking into possession of clothes Ex. P. 20 to Ex. P. 22 is highly suspicious is without merit. No benefit can be drawn by the accused from the mere fact that though the accused Mansha Ram was arrested on 23-10-1995, the clothes are shown to have been taken into possession only on 25-10-1995 especially in view of the fact that the evidence of PW. 3 has remained unchallenged.
30. The accused Sanjay Kumar is alleged to have made a disclosure statement Ex. P. 8/A on 29-10-1995 in the presence of PW. 8 Ratti Ram and one Bhupender Singh leading to the discovery of iron rod Ex. P. 4. Such iron rod was found to have stains of human blood on it vide report Ex. P. 19/N. PW. 8 Ratti Ram and PW. 20 the Investigation Officer have proved the making of disclosure statement by the accused Sanjay and the discovery of iron rod Ex. P. 4 in pursuant thereof. During the course of cross-examination of these two witnesses nothing could be elicited from them to show that the making of the disclosure statement Ex. P.W. 8/ A. was not voluntary or that the discovery in pursuance thereof is in any manner doubtful.
31. The evidence coming on record establishes beyond doubt that disclosure statement Ex. P. 8/A was made by accused voluntarily and that iron rod Ex. P. 4 came to be recorded in pursuance thereof.
32. The contention that the possibility of PW. 10 Ganga Ram and PW. 11 Tula Ram having inflicted injuries on the deceased and their having received the injuries at the hands of the deceased cannot be ruled out. has been raised on the face of it, as an after thought. No such defence was made out by the accused during the course of trial nor any such suggestion was put either to PW. 10 or to P.W. 11. Admittedly, the deceased was real brother of PW. 11 Tula Ram. Nothing has come on the record to show that PW. 10 or PW. 11 had any enmity with the deceased in order to afford a motive to kill him or cause injuries to him. The evidence shows and it is also not disputed by the accused that the deceased was living with his brother PW. 11 in the same house. Even in their statement recorded under Section 313, Code of Criminal Procedure, no such case has been set up by the accused. Rather the evidence coming on record conclusively establishes that the accused are the assailants.
33. No other point was urged before us.
34. The three accused stand rightly convicted and sentenced by the learned trial Judge and no interference in such conviction and sentence is called for.
35. Resultantly, the present appeals fail and the same are accordingly dismissed.