State of Himachal Pradesh vs Smt. Gaurja Devi

R.B. Misra, J.—The present criminal appeal has come up for consideration after leave to appeal has been granted u/s 378 (3) of the Code of Criminal Procedure, against the judgment dated 22.3.2005 passed by the learned Sessions Judge, Mandi, in Sessions trial No. 33 of 2002, acquitting the accused/respondent for offences under Sections 452 and 302 of the Indian Penal Code (in short called IPC), in reference to FIR No. 15/2002 dated 3.1.2002. The prosecution case, in brief, is that on 2.1.2002 at about 6.15 P.M. the accused visited the house of Maya Ram with one Hira Lal who was carrying ''Dholaki'' and ''Chimta'' of the deity Deotsidh which had been donated by the son of the accused. When she went to the house of Maya Ram, Hira Lal left the ''Dholaki'' and ''Chimta'' before the Diety Deotsidh which had been installed at the house of Maya Ram (deceased) and at that time Maya Ram was all alone and was standing in the corridor of his house. Accused came under the influence of deity and started vibrating her body. Next morning Maya Ram was lying dead in the corridor outside the house of Maya Ram and Panchho Devi, wife of deceased Maya Ram, returned home and at her instance information was given to Nabal Kishore, son of the deceased, who thereafter made a complaint to the police on 3.1.2002 at 1.30 P.M. by way of Ex.PA. After investigation, accused/respondent was charged for the aforesaid offences and the case was committed to Sessions Court.

In order to prove its case, the prosecution has examined as many as 14 witnesses, whereas, in his statement u/s 313 Cr.P.C., the accused/respondent denied the prosecution case and examined one defence witness.

In order to adjudicate the present appeal, preferred against the acquittal of the accused/respondent, we have to analyze the prosecution evidences. We also take note of the fact that in the said incident the deceased had suffered injuries, so much so, the accused had also suffered multiple injuries.

Dr. Jawanand (PW10), Medical Officer, Zonal Hospital, Mandi, after conducting the post mortem examination of the body of the deceased, who was aged about 74 years, has noted the following injuries:

There was obliquely lying lacerated wound on left frontal region near midline with its anterior end 3 c.m. above medial end of left eye brow of size 3x1 c.m. and was bone deep at both ends but shallow at the center with irregular margins, clotted blood over and around the would with under lying contusions of scalp extending from interior margins of would to the whole of the left parietal region near middling of size, length 20 c.m., triangular in shape up to the parietal region and then to lamdiod suture left side. There was also fracture of underlying skull bone from anterior end of left parietal bone to the posterior end of the bone near midline with irregular margins and clotted blood over the margins.

There was tear laceration of lower lip on the left half over mucosal surface with fracture dislocation of lower right central incisor with lot of clotted blood on the lip and at the root of right lower central incisor with fluid blood in the mouth cavity. The size of laceration was 1x1x1/2 C.M. deep on lower lip and appeared ante mortem in nature.

There was tear laceration on left upper ye lip at outer end near eyebrow 1x1 c.m. with clotted blood over it and appeared ante mortem in nature.

There was a reddish contusion on the bridge of the noe with inderlying facture of nasal bone in to pieces with lot of clotted and fluid blood at fractured side and in both nostrils. The injury appeared ante mortem in nature.

There was reddish pink contusion on medial side of left leg of size 1x1 c.m. above medial malloleus and was ante mortem in nature."

After examining the FSL report, PW-10 opined that the deceased had died due to combined effect of head injury and haemorrhagic shock. PW-10 also opined in cross-examination that if a person falls on the stones, some of the injuries, as had been suffered by the victim/deceased, could have been caused. Injuries could also be caused if a person stands up and then again falls on the floor if pushed with sufficient force.

Dr. Harish Behl (PW-12), Medical Officer, Mandav Hospital, Mandi, who has examined accused/respondent Smt. Gaurja, aged about 50 years at the relevant time, has also noted the following injuries :

A superficial abrasion on forehead central part at anterior hair line (2 1/2 " from the foot of the nose) 1 CM x1 cm, irregular, clotted blood ore sent over the abrasion with central area yellowish, minimally infected.

An abrasion about 1/2 inch long on forehead right side, clotted blood present over the abrasion, ooze present on removal of the clot.

An abrasion on the vault of the skull, 1 inch long and 1/2 cm wide, obliquely placed, minilally infected with yellowish slough over the wound infected with yellowish slough over the wound.

A contused abrasion over the left radial styloid process, 1cm x3 mm, transversely placed, yellowish centre and indurated margins. Underlines bone appears normal clinically.

2 reddish purple contusions over left knee, one on the medial femoral and other on the lateral femoral, condyle region. Underline bones, clinically normal. No evidence of effusion or Haemarthrosis of the knee joint.

One purplish red contusion over anterior aspect of the right knee, minimal effusion present. Underlines bones clinically normal.

An abrasion over the left shin, lower third 1cm long, longitudinally placed, curshed present over the abrasion.

Contusion over dorsum of right foot, in the region of second, third and fourth metatarsal region, 4cm x 3cm. Underline bones appeared normal clinically.

A purplish red contusion over the left scapular region with ill defined margins. Local superficial tenderness present. Passive movement of scapula elicited no crepitus. Shoulder movements normal."

PW-12 also opined that the nature of the injuries No. 1 to 9 are simple and the weapon used to cause these injuries was indicated to be of blunt nature. PW-12 also opined in cross- examination that such type of injuries could be possible with danda blow and if some person is struck with a lathi of about four feet long and about 1 1/2 -2 inches thick with force on some vital organ, such injury may cause death.

PW-1 Nabal Kishore has made complaint vide Ex.PA stating that on 3.1.2002 when he was in his shop he received telephonic message from Sanya that her grand father was lying outside his house in a pool of blood having injuries on his person and on rushing to the spot PW1 noticed that deceased was lying dead inside the house in verandah, some hair, one mala and beads scattered, hair pin, clips were lying there and there were scratches on the wall and one electric bulb was also found broken. Accordingly, PW1 reported the matter to the police. PW1 has further stated in cross-examination that the house of the accused was joint with the house of the deceased and house of the deceased was having the seat of Deotshid which was being worshiped by the family members of the deceased as well as of the accused. PW-1 has also stated in cross-examination that Dholaki and Chimta was offered by the son of the accused. PW-1, at one instance, has denied that the place, where the dead body of his father was lying, was a stony place. PW1 also self stated that stones had not been kept there, it was a floor of stones, whereas, other floor was that of mud.

Smt. Panchho Devi (PW-2), the wife of the deceased, who at the fateful day, had come from his relative''s house, had noticed that her husband was lying outside "Paraul" and the body of the victim was smeared with blood and injuries on his head. Accordingly, PW2 started weeping and then Sanya, her grand daughter, informed about the incident to PW1. PW2 also noticed that one mala, which was broken, bunch of hair and other articles were found lying there. Sanya Devi (PW-3) has stated that on 3.1.2002, she heard the cries of his grand mother from her house and when she went to the house of her grandmother she noticed that her grand father Maya Ram was lying just outside the "Paraul" and had sustained injuries. Accordingly, she informed Nabal Kishor telephonically. Hem Raj (PW4), photographer had taken the photographs of the spot and stated in cross-examination that there were many stones lying on the spot where the dead body of the deceased was lying and some of the stones were embedded on the ground.

Bhup Singh (PW5), Up-Pradhan of Gram Panchayat, has stated that on 3.2.2002 when he was present in his house he came to know about the death of Maya Ram. Accordingly, he went to the spot and observed that the dead body of Maya Ram was lying outside the "Paraul" having injuries on his face and head and smeared with blood. PW5 also accompanied the police inside the house along with Pradhan when police took into possession bunch of hair lying there and also recovered broken pieces of bulb and holder as also broken mala along with beads, hair pin, clip etc. PW5 has stated in cross-examination that the place, where the dead body was lying, was quite uneven, hard, rough and stony. PW5 has also stated in cross-examination that inside the verandah there was a stick and just in front of that there was a broken bulb. However, at that time danda was not taken into possession by the police.

Hira Lal (PW6), known to the accused as well as deceased, has stated that he had taken ''Dholaki'' and ''Chimta'' from the deceased which had been offered in the temple of deity of Deotsidh by Om Prakash, son of the accused. On 2.1.2002, at about 6/6.15 p.m., accused came to his house and asked as to why he had not returned the ''Dholaki'' and ''Chimta''. On this he took both these things to the deity of Deotsidh in the house of Maya Ram (deceased) and accused had also accompanied him. At that time deceased/Maya Ram was in the corridor of his house. Accused came under influence of deity and started vibrating her head and started moving her body in different directions. As stated by PW6, he returned to his house. PW6 further stated in cross-examination that when accused came under the influence of deity and started vibrating her head, victim/deceased asked to leave the ''Dholaki'' and ''Chimta'' and asked PW6 to go.

Sh. Nag Ram, PW-7 has stated that he was posted as Gram Panchayat Vikas Adhikari, Khaianu and in his knowledge Maya Ram had filed a complaint against the son of the accused for felling of oie tree and the proceedings were going on before the Panchayat for such felling of trees. HHC Baldev Singh (PW8), C. Pardeep Kumar (PW9), ASI Ghanshyam (PW11) and C. Tej Ram (PW13) are formal witnesses and are not very material to support the prosecution case as they had discharged their duties in their official capacity which was assigned to them.

Shri K.D. Sharma (PW14), SHO/Inspector, P.S. East Shimla has stated that at the relevant time he was posted as SHO P.S. Sadar Mandi. On 3.1.2002, he visited the spot and recorded the statement of Nabal Kishor and recorded the FIR Ex.PU. PW-14 also noticed that the dead body of Maya Ram was lying near the main door of his house. Stones were lying scattered near the dead body and there was pool of blood near the dead body. Inside the house, on cluster of hair, one broken mala and beads were scattered on the verandah. One bulb of the wall was also found broken. PW-14 has stated in cross-examination that there was a stick lying in the verandah of the house near the broken bulb pieces, however, stick was not taken into possession. PW-14 has also stated in cross-examination that the house of the accused is below the house of the deceased at a distance of 400-500 meters. PW-14 has also not ascertained that in previous night the accused was all alone in her house.

Tajinder Pal Rana (DW-1), Technician Blood Bank, N.H. Mandi while working as technician in blood bank in Mandi Hospital had carried test to ascertain the blood group of accused and accordingly opined that she was having blood group of A-positive, however, nothing concrete emanated from his report Ex.DA.

Accused/respondent, in her statement u/s 313, Cr.P.C. in response to question No. 28, has stated that her hairs were pulled, she was dragged and pushed against the walls and had suffered injuries at the hands of the victim/deceased. Response to question No. 28 also revealed that she was beaten by a danda and during such beatings her mala fell down and beads were scattered and she apprehended danger to her life and during such beating electric bulb was broken by stick used by the victim/deceased. However, she managed to escape and ran out of the door, followed by the victim/deceased who fell down while chasing her and was struck with the outer door of his house.

On analysis of prosecution evidences, material on record and medical reports, it appears that the presence of the accused/respondent in the house of victim/deceased is undisputed. Medical report, as given by PW-12, also indicates that accused/respondent had also suffered as many as 9 multiple injuries on different parts of her body which were possible by danda blow and lathi as opined by PW-12. The presence of accused/respondent in the house of the deceased/victim is also supported by the statement of PW6 Hira Lal and the response of the accused/respondent in reference to question No. 28 also sufficiently indicates that accused/respondent was present in the house of victim/deceased and the spot map as also the testimony of PW6 and medical report also indicate that accused/respondent had suffered injuries in the house of victim/deceased. Though, no one has seen while quarrel and assault was going on and when accused/respondent was also beaten up and none has observed how victim/deceased had sustained injuries on his person, however, the circumstances being observed revealed that it appears to be persistent enmity of Maya Ram/(deceased) with the family members of the accused/respondent and in that respect the testimony of Bhup Singh (PW-5) may be relevant and indicative of the fact that the complaint was filed against the son of the accused about felling of trees and in that connection case was going on before the Panchayat. However, in view of the testimony of Hira Lal (PW6), who was accompanied by the accused/respondent, while PW-6 had gone to the house of deceased/victim to return the ''Dholaki'' and ''Chimta'', has very categorically stated that at that time accused came under the influence of deity and started vibrating her head and on the asking by victim/deceased/ Maya Ram, PW6 had left that place leaving ''Dholaki and Chimta'' there. In view of the testimony of PW6, victim/deceased had asked him to leave ''Dholaki'' and ''Chimta'' and to go and it was not the accused who had asked Hira Lal (PW6) to go from the house of Maya Ram/deceased. If accused had asked Hira Lal then it could have been said that the accused was having motive to kill Maya Ram but that is not so. Being present in the house of Maya Ram at the relevant time and having come under the influence of deity and during vibrating her head, the accused/respondent might have beaten by the victim/deceased and in that condition the accused might have suffered multiple injuries, mala was broken and beads were scattered and during that episode her hairs might have been pulled which were found lying there. In such circumstances, it could not be stated that the accused was the aggressor. If the victim had already fallen down and had sustained so much of injuries, as indicated by PW-10, then thereafter there could not be any occasion that he could have inflicted the injuries to accused with danda. The analysis of the prosecution evidences and material on record indicate that there is every possibility that accused was beaten firstly by the victim/deceased, which also find resemblance with the articles recovered from the spot and the injuries sustained by the accused. In the circumstances, while being chased, victim/deceased might have fallen and had sustained injuries. So much so, having beaten up had the accused/respondent pushed the deceased to save her life that could have caused injuries on the person of the victim/deceased. Such act of accused could also be covered under the scope of right of self defence. However, that aspect cannot be analyzed in detail. It is sufficient to say that the circumstances revealed that accused/respondent after suffering multiple bodily injuries might have tried to escape, followed by the victim/deceased who too had fallen on uneven surface as told by PW-4, PW5 and has truly been analyzed by PW 14 and Maya Ram had suffered injuries causing his death. In the facts and circumstances of the case, we are of the considered view that the learned Additional Sessions Judge had rightly arrived at the finding that the prosecution has not been able to prove its case beyond reasonable doubt. In our considered view also, the prosecution has failed to bring home the guilt to the accused. Accordingly criminal appeal, being devoid of any merit, is dismissed. Bail bonds, furnished by the respondent/accused, are discharged.