KISHAN CHAND Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) This appeal is directed against the judgment dated 5.10.2004 passed by the learned Sessions Judge, Hamirpur whereby the appellants -accused (hereafter referred to as A -l and A -2 in the order as mentioned in the Cause Title) have been convicted and sentenced as follows: Accused Section under which convicted Sentenced imposed Krishan Kumar(A -l) 304 Part II, IPC Rigorous imprisonment for 7 years and fine Rs. 5,000/ - and in default of payment of fine further imprisonment of six months. Sanjay Kumar (A -2) 325, IPC Rigorous imprisonment for 2 years and fine Rs. 1,000/ - and in default of payment of fine further imprisonment of one month.

(2.) Case of the prosecution in brief is that Giffo Devi (since deceased), mother of Man Chand (PW -1) used to reside in village Balu alongwith her widowed daughter -in -law Praveen Kumari (PW -4) and children of PW -4. Other sons of Giffo Devi, namely Man Chand (PW -1), Dharam Paul (PW -2), Braham Dass (PW -11), are residing in separate houses located at some distance from the house of the deceased. Adjacent to her house is her Courtyard whereon there is a cowshed and the other part of the Courtyard is used for tethering the cattle. Opposite to the house of the deceased is the house of the accused persons. On the morning of 24.2.2004 at about 9.30 a.m., the accused persons with the help of two labourers, namely Govind Ram and Govind Bahadur started digging land of the Courtyard of the deceased with Gainti, iron rod and Jhamb. The deceased objected to the digging of the land and asked the accused persons not to dig the same till it was demarcated. She further told the accused persons that she would leave the land in case found belonging to the accused persons. The accused persons, however, paid no heed. On the contrary A -2 gave a fist blow to the deceased on her face thereby knocking out her two teeth and A -l gave a Gainti blow on the head of the deceased who fell down and both the accused went to their house. At the time of the occurrence, PW -1, PW -2, Nirmala Devi (PW -3) and PW -4 were on the spot. They lifted the deceased who was unconscious to the Varandah of their house where she was made to lie on a cot. On hearing of the incident PW -11 and Giano Devi (PW -5) came to the house of the deceased. A taxi driven by Raj Kumar (PW -8) was arranged by PW -11 and the deceased was removed to Zonal Hospital, Hamirpur. PW -1 reported the occurrence at Police Station, Hamirpur and as a consequence FIR Ext. PA came into being. The deceased succumbed to the injury and the concerned Medical Officer conveyed her death to MHC Sudesh Kumar (PW -13). As a result, report Ext.PW -13/A was recorded at the Police Station. However, before her death the deceased had been medically examined by Dr. D.R. Sharma (PW -9) who issued MLC Ext.PW -9/A about such examination. Photographs of the dead -body were taken and inquest reports Exts.PW -10/B and PW -10/C were prepared. Post -mortem on the dead -body was conducted by Dr. Dinesh Thakur (PW -10) and his post -mortem report is Ext.PW -10/D. The spot was photographed. The blood stained soil and stones, earth sample, a shawl and blood found in the Varandah were taken in possession vide memo Ext.PW -2/A by the Investigating Officer (PW -15). A pair of Chappals Ext.P -8 left on the spot by the accused persons and shoes of the deceased Ext.P -7 were also taken in possession from the spot vide memo Ext.PW -2/B. The pillow Ext.P -12 which had got blood stained when the deceased was laid on the cot in the Varandah of her house was also taken in possession vide memo Ext.PW -2/B. One of the knocked out tooth Ext.P -10 of the deceased was produced to the PW -15 by PW -4 and was taken in possession vide Ext.PW -2/C. After arrest, A -l made a disclosure statement Ext.PW -4/A on interrogation by PW -15 in the presence of Giano Devi (PW -5) and Tej Singh, as a consequence whereof Gainti Ext.P -2, sketch whereof is Ext.PW -2/F, was recovered from the residential house of the accused vide memo Ext.PW -2/J. The clay attached to the Gainti was separated and seized vide memo Ext.PW -2/G. On production by A -l, Pyajama Ext.P -19 and T -Shirt Ext.P -20 were taken in possession vide memo Ext.PW -2/J. On production by A -2 his Pant Ext.P -16, T -Shirt Ext.P -17 were also taken in possession vide memo Ext.PW -2/H. The place of incident was got demarcated through Patwari Manjit Singh (PW -6) and site plan was prepared by Manish Kumar JE (PW -7). The incriminating articles taken in possession were got analyzed vide report of the Chemical Examiner, Ext.PW -15/F. On completion of the investigation, charge -sheet was submitted against the accused persons, who came to be tried by the trial Court on a charge under Section 302 read with Section 34, IPC.

(3.) To prove the charge against the accused persons, prosecution examined as many as 15 witnesses. Statements of the accused persons were recorded under Section 313 Cr.P.C. wherein they denied the prosecution case and claimed that the witnesses belong to the same family and wanted to involve them in the case. Accused Sanjay Kumar has further claimed that he was not present on the spot. The accused persons, however, did not lead any defence evidence.