BIR SINGH versus STATE OF HIMACHAL PRADESH

S.B. SINHA, J. The appellant herein has been convicted by the courts below for alleged commission of an offence punishable under Section 307 of the Indian Penal Code on the charge of attempt to commit murder of one Shri Harjit Ram, an Assistant Sub-Inspector of Police attached to a police out-post situate at Jahlama. The appellant herein is a resident of village Rape. Jahlama police out-post is situated at a distance of about 3 kms. from the said village in one of the remote districts in the State of Himachal Pradesh. He came to the said police out-post at about 8.30 p.m. and asked the police personnel to accompany him to the village Rape as, allegedly, a faction fight had been A going on threat. In the said out-post, apart from - A.S.I. Harjit two constables, namely, PW4 - Devi Singh and PW5 Tashi Dorje present besides two other constables, namely, Bhim Singh and Dile his request to visit the said village, the injured allegedly declined

pp. 337–338, margin F

to his request stating that as it was late in the night and the road the path leading to the village were sloppy and also not in good condition because of the nullahs having been spate due to heavy flow of water, not be safe to undertake any journey at that hour of the night. He was that police party would be sent to the said village early in the morning next day. The appellant was also advised not to go back at such time

p. 338

at the police post. He is said to have complied with the said request. building, wherein the police post is situated, is a double storeyed one.

p. 338, margin B

ground floor, the office of the police was housed, whereas on the there was the kitchen. The informant asked the appellant to accompany to take his meals. While going from the office room to the kitchen,

p. 338, margin C

injured started climbing the ladder at that time. He was allegedly blow by the appellant with his 'khukhri' on the right side of his the eye starting from rear of the nose extending right up to the ear. When he looked back, another blow was hurled on him resulting causing a cut injury on his right elbow horizontally. With a view the said khukhri from the hand of the appellant, the informant sustained

p. 338, margin A

injuries in his hands. Hearing the noise, PW4 and PW5, together two constables, arrived at the spot running and overpowered the The injured snatched the khukhri from his hand. He was, thereafter, shifted to the room of the upper floor of the building. The appellant was said been detained in the office room. There was a small hospital known as Shansha, which was situated at a distance of 3 to 4

p. 338, margin D

Jahlama. A doctor from the said hospital was summoned through who reached the police post at about 12.00 O'clock in the night. The of the injured were stitched. The Pradhan of the village was said to summoned. The said incident was recorded in the Daily Diary Devi Singh took the same to the District Headquarter situated at

p. 338, margin A

which is said to be situated at about 26 kms. away from Jahlama. G Investigating Officer, PW9 - Shobha Ram, visited Jahlama on the 9th May, 1988 and started investigation. On the next morning, was sent to the Hospital at Shansha. He was thereafter referred to Hospital at Keylong.

p. 338, margin F

Upon completion of the investigation, a charge-sheet was

p. 338, margin F

of the Indian Penal Code.

p. 339, margin A

injuries sustained by PWl are as under:

p. 339, margin A

An incised wound oblique in direction from inner corner of eye extending to below right ear. Size 15 cm. long 1 cm. Yi cm. wide.

p. 339, margin A

An incised wound over right side of head from the side forehead to upward and backward. 10 cm. long Yi cm. wide Yi cm. deep.

p. 339, margin B

An incised wound behind right ear obliquely placed. 4\1, long Yi cm. deep and Yi cm. wide.

p. 339, margin B

An incised wound over right ear. I cm. long and Yi cm.

p. 339, margin C

Incised wound between first and second finger. 7 cm. long cm. long I cm. deep I Yi inch long.

p. 339, margin C

I cm. long incised wound, Yi cm. deep at the base of left thumb. 1 Yi cm. long, Yi cm. deep incised wound.

p. 339, margin D

On the back of right shoulder there was incised wound of long, Y, cm. deep vertically placed. injured was examined on 9.5.1988 by PW2 Dr. Namgayal. prosecution, in support of its case, besides examining PW!, injured, examined the eye-witnesses to the occurrence, viz., PW4 and recording a judgment of conviction, the learned Sessions Judge the appellant to undergo 7 years' Rigorous Imprisonment and 2,000. On an appeal made therefrom, the High Court maintained said conviction, but, reduced the sentence from 7 years to 5 years, but fine of Rs.5,000/- upon him. Vijay K. Mehta, learned counsel appearing on behalf of the appellant, of the appeal, would submit that both the learned Sessions Judge the High Court committed manifest errors in arriving at a finding evidences of PW!, PW4 and PW5 were sufficient to arrive guilt as against the appellant herein. According to the learned prosecution failed to analyze the evidence in a holistic manner. urged that the learned courts below failed to consider the fact independent witness, viz., Hira Lal, who was the Village Pradhan, did A support the prosecution case and was declared hostile. The prosecution furthermore did not, it was submitted, explain as to why the injured examined by the Investigating Officer, PW9, Shobha Ram, for the first on 9.5.1988. It was also submitted that in view of the materials brought records by the prosecution itself, it would appear that other independent witnesses were available in the village, but, despite the same, neither other person in the village was examined by the Investigating Officer nor of them were cited as prosecution witness. The genesis of the occurrence, namely, that there had been a free fight at the village of the appellant, Rape, having not been proved, the prosecution case must be held to failed to prove the guilt of the appellant. The learned counsel for the State, on the other hand, supported impugned judgment. Before adverting to the contentions raised in this appeal, we may notice certain peculiar features of the case. The fact that the appellant was resident of village Rape is not in dispute. It is furthermore not in dispute that PW-I, AS! Harjit Ram, sustained grievous injuries. The appellant is said to been aiTested at the police post situated at Jahlama. If this Court is to believe the prosecution case, the occurrence took place after 8.30 p.m. at the police post itself. The appellant has not examined any defence witness. In fact, has not entered into any particular defence. Why he came to the police was not explained by him. PW! stated in great details as to how he had suffered injuries. injuries suffered by him stand corroborated by medical evidence. categorically stated that he could not even recognize the accused at the of incident, but, according to him, he came to know later on that two groups which were reported by the accused to have been fighting, had approached him earlier in his capacity as in-charge of police force with a complaint of apprehension of breach of peace and on that basis, a proceeding under Sections 107/151 of the Criminal Procedure Code was initiated by him. G The night was dark. There was no electricity in the office. The injured and the other constables had lit candles. It has not been disputed that the Investigating Officer was informed immediately about the occurrence on the basis whereof a First Information Report was lodged. It has furthermore not been in dispute that the Investigating H Officer had to walk all the way in difficult terrain from the district headquarters of occurrence and thus, he could reach there only in the night A 1988. He categorically stated that he could not take any statement injured before 21.5.1988 as he was not in a position to give the although he was talking. statement of PWI had been corroborated in material particulars by singh and PW5 Tashi Dorje. We have not been shown any B would throw any shadow of doubt to disbelieve the statements witnesses. be true that PWI I, the Village Pradhan, Hira Lal was called, not mean that PW4 and PW5 were bound to call other villagers C Village Pradhan might have been called to apprise him of the I, the Village Pradhan, has been declared hostile, as, according was lying in an injured state near the building of police station, unconscious state. He, as would appear from his deposition, his earlier statement. Both the learned Sessions Judge as also opined that only because PW! 1, Village Pradhan, was declared D same by itself would not lead to the conclusion that the statements witnesses were not to be relied upon. appellant interestingly gave a suggestion to the prosecution witnesses unknown persons had assaulted PW! when he went across the road he was passing along that road, he was arrested on suspicion, E clearly establishes his presence at Jahlama. incident in question was recorded by PW4 - Devi Singh in the great details. It had to be sent to the District Headquarters at Investigating Officer could come to the place of occurrence only after finishing his work, walking all the way from Keylong to Jahlama, F also a pointer to the fact that the information to the police was given possible opportunity. reasons afore-mentioned, we do not find any merit in this appeal is dismissed. The appellant is on bail. He is directed to G immediately. The trial court is directed to take steps in this behalf. Appeal dismissed.

pp. 339–341, margin D