Himachal Pradesh High Court

Kaneta vs State Of H.P on 28 December, 2021

Bench: Sabina, Satyen Vaidya

    IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

              ON THE 28th DAY OF DECEMBER, 2021




                                                        .

                              BEFORE

                HON'BLE MRS. JUSTICE SABINA





                                 &
              HON'BLE MR. JUSTICE SATYEN VAIDYA

                    CRIMINAL APPEAL No.4 of 2019

        Between:-

        DEVENDER SINGH,
                 r          to
        SON OF SH. JAGJIT SINGH,
        RESIDENT OF VILLAGE BUGHAR

        KANETA, P.O. RAMPURI,
        TEHSIL KASAULI, DISTRICT SOLAN, H.P.
        (PRESENTLY LODGED IN JAIL),
        AGED ABOUT 34 YEARS.


                                                     ......APPELLANT
        (BY SH. HOSHIAR KUSHAL,
        ADVOCATE)




        AND





        STATE OF H.P.
                                                  ......RESPONDENT





        (BY SH. KUNAL THAKUR,
        DEPUTY ADVOCATE GENERAL)

                        RESERVED ON : 22.12.2021
                        DECIDED ON :     28.12.2021




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                  This appeal coming on for hearing this day, Hon'ble
    Mrs. Justice Sabina, delivered the following:




                                                              .
                              JUDGMENT

Appellant has filed appeal challenging the judgment/

order dated 29.09.2018/08.10.2018 passed by the trial Court,

whereby he was convicted and sentenced as under:-

(i) For the offence punishable under Section 323, IPC, he was sentenced to pay a fine of Rs.500/- and in default of payment of fine, he was further directed to undergo simple imprisonment for 10 days.

(ii) For the offence punishable under Section 324, IPC, he was sentenced to undergo rigorous

imprisonment for a period of six months.

(iii) For the offence punishable under Section 326, IPC, he was sentenced to undergo rigorous imprisonment for a period of four years and to pay

a fine of Rs.50,000/- and in default of payment of fine, he shall have to further undergo simple imprisonment for a period of three months.

(iv) For the offence punishable under Section 307, IPC, he was sentenced to undergo rigorous

imprisonment for a period of ten years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, he shall have to further undergo simple

imprisonment for a period of one year.

2. Prosecution case was set in motion on the basis of

statement of complainant Tilak Raj. Case of the complainant, in

brief, was that his sister Divya was married to appellant Devender

Singh about two years prior to the registration of FIR. His sister and

her husband were having a matrimonial dispute as appellant used to

beat his sister under the influence of liquor and their case was

pending before the Women Cell. Divya had given birth to a daughter

out of her wedlock. On 25.02.2015, complainant, his father and his

sister had taken their meals at about 9:00 p.m. and had thereafter

slept in their separate rooms. At about 12:00 midnight, appellant

entered their quarter. On hearing the cries of his sister and father,

complainant got up and reached at the spot and saw that appellant

r to had inflicted knife blows to his father and his sister was lying on the

bed in an injured condition. His father and sister had suffered

injuries on various parts of their body. Appellant had fled away from

the spot.

3. On the basis of the statement of complainant, formal

FIR No.56 dated 26.02.2015 was registered at Police Station Shimla

West, under Sections 323, 324 and 307 of the Indian Penal Code

(IPC).

4. After completion of the investigation and necessary

formalities, challan was presented against the appellant.

5. Charges were framed against the appellant under

Sections 323, 324, 326 and 307, IPC, vide order dated 03.12.2016.

Appellant did not plead guilty to the charges framed against him and

claimed trial.

6. In order to prove its case, prosecution examined 18

witnesses. Appellant, when examined under Section 313 of Code of

Criminal Procedure (Cr.P.C.) after close of the prosecution case,

prayed that he was innocent and had been falsely implicated in the

case. Appellant did not examine any witness in his defence.

7. The trial Court, vide impugned judgment/order, ordered

the conviction and sentence of the appellant as mentioned in para-1

of this judgment. Hence, this appeal by the appellant.

8. Mr. Hoshiar Kaushal, learned counsel for the appellant,

has submitted that during trial it was the case of the prosecution that

the knife used by the appellant had been snatched by PW-11 Dev

Raj and Mahinder Singh. However, the knife which was later

recovered, had been semi embedded in the earth. Hence, it can be

said that the weapon of offence, alleged to have been used by the

appellant at the time of incident, had not been established/proved by

the prosecution during trial. Learned counsel for the appellant has

also submitted that the factum of recovery of knife, used at the time

of incident, had not been put to the appellant when he was examined

under Section 313, Cr.P.C.

9. Mr. Kunal Thakur, learned Deputy Advocate General, on

the other hand, has opposed the appeal and has submitted that both

the injured had duly supported the prosecution case during trial. The

statements of the injured have been rightly believed by the trial

Court.

10. In the present case, parties are related to each other.

Appellant is the husband of injured PW-8 Divya and is the son-in-law

of injured PW-17 Madan Lal. Complainant Tilak Raj is the

brother-in-law of the appellant. In the incident, wife and father-in-law

of the appellant have suffered injuries.

11. Complainant Tilak Raj, while appearing in the witness

box as PW-16, has deposed as per the contents of the FIR. He

further deposed that he had made futile attempt to snatch the knife

from the appellant. In the meanwhile, Dev Raj and Mahinder had

reached the spot and they had snatched the knife from the hands of

the appellant.

12. Injured Divya, while appearing in the witness box as

PW-8, has deposed that she was married to the appellant in the year

2013 and had lived with him for about 5-6 months. Appellant used to

abuse and beat her under the influence of liquor. She left her

matrimonial home and started residing with her parents at Shimla. A

daughter was born to her out of the wedlock in the year 2014. She

had filed a complaint against the appellant before the Women

Commission. Appellant came to Shimla in the month of January,

2015 and her brother arranged a job for the appellant and he started

residing with them. Appellant had beaten her under the influence of

liquor on one or two occasions. On 25.02.2015, she and her father

had slept in one room, whereas, her brother had slept in the

adjoining room. At about 12:00 midnight, appellant came to their

residence and threw water on her. Appellant inflicted injuries on her

person with a knife and on hearing her cries, her father tried to save

her. Appellant inflicted knife injuries to her father also.

meantime, her brother came to the spot and made efforts to save her In the

father. Mahinder and Dev Raj also reached at the spot. She was

moved to the hospital for treatment. Mahinder and Dev Raj had

caught hold of the appellant and had snatched the knife from him.

13. Injured Madan Lal, who appeared in the witness box as

PW-17, has corroborated the statement of his daughter PW-8, with

regard to the manner of incident.

14. PW-11 Dev Raj deposed that on 25.02.2015, he was

sleeping in Room No.36 and Tilak Raj was also sleeping with him.

During night time, Tilak Raj had left the room. After hearing noise,

he came out of the room and saw that appellant Devinder was

carrying knife in his hand. He snatched the knife from the appellant.

He also deposed that on 26.02.2015, he had associated with the

investigation of the case.

15. PW-14 Dr. Sanjay Kumar deposed that on 26.02.2015

he had medico legally examined Divya at about 2:00 a.m. and had

found the following injuries on her person:-

"1. Incised air sucking wound 4x1 cm vertical oval shaped on anterior right chest wall just below middle of clavicle with acute and downwards and round end

upward with active bleeding.

2. Incised wound 1.5 x .5 cm with muscle cut on anterior axillary line at the level of nipple with active bleeding right side.

3 Incised wound 1x.5 cm with skin cut right side of axilla

with oblique with active bleeding.

4. Incised wound 1 x .5 cm skin cut posterior to injury No.3.

5. Incised wound 1.5 x 5 cm with muscle cut on the right upper arm per medially near axilla with active bleeding.

6. Incised wound 2.5 x 1 cm muscle cut on the right arm upper part near shoulder, laterally oblique over deltoid.

7 Incised wound 2.5 x 1 cm with muscle cut at the level of sixth injury posteriorly on right arm.

8. Incised wound 2.5 x 1 cm horizontal to right mid-arm laterally.

9. Incised wound 2.5 x 1 cm on the right arm oblique anterior to injury No.8.

10. Incised wound 2.5 x 1 cm on the right hands dorsum spindal shaped oblique just above knuckle of middle finger.

11. Incised wound 2.5 x 1 cm oblique medial aspect of right wrist joint.

12. Incised wound 2 x .5 cm oblique lateral aspect of right wrist joint.

13. Incised wound 3 x 5 cm horizontal posteriorly at

.

middle of right forearm.

14. Incised wound 2.5 x 5 cm oblique posterior aspect of right forearm below and lateral to injury No.13 with middle and acute lateral and round.

15. Incised wound 4 x 1 cm muscle deep on palmer aspect left hand extending from near base of thumb below downward with tapering downward.

16. Incised wound 3 x 1 cm with muscle deep on dorsum

of left hand near thumb base.

17. Incised wound 1 x 5 cm skin deep on base of left middle finger dorsal aspect.

18 Incised wound 2.5 x 1 cm with some subcutaneous

tissue cut on right leg middle part laterally more

towards anterior aspect with acute and upward anteriorly, broad based in opposite direction in a spindle shaped.

19. Incised wound 2.5 x 1 cm subcutaneous tissue cut on

right mid thigh laterally with acute and upward and anteriorly with oval shaped.

20. Incised wound 4 x 2 cm with subcutaneous tissue cut posteromedially on right popliteal fossa shape has

been mentioned in the MLC.

21. Incised wound 1 x .5 cm with subcutaneous tissues cut on right thigh posteriorly horizontal.

22. Incised wound 1 x.5 cm subcutaneous tissue cut on

left knee laterally.

23. Incised wound 1 x .5 cm on the left knee above and lateral to injury No.22.

24. Incised wound 1.5 x .5 cm on right back infrascapular region with active bleeding."

16. He further deposed that injuries No.1, 2 and 3 were

grievous in nature. All the injuries could have endangered the life of

the victim. All injuries could be caused by sharp edged weapon.

17. He further deposed that on the same day, he had

medico legally examined Madan Lal and had found following injuries

on his person:-

1. Incised wound 7 x 2 cm bone deep on occipital region oblique on right end, lower left and higher more towards right side and active bleeding.

2. Incised wound 2.5 x .5 cm with muscle cut on right

side of the face spindal shaped with active bleeding.

3. Incised wound 3 x 1 cm bone deep on right side forehead above eyebrow.

4. Incised wound 1 x.5 cm only skin cut on right side of

neck.

5. Abrasion 2.5 x 1 cm red in colour on right forearm posteriorly.

6. Contusion 3 x 3 cm red in colour on left side temple

and frontal area.

7. Incised wound 2.5 x .5 cm on left side anterior chest wall above nipple oblique spindal in shaped.

8. Contusion of 4 x 3 cm red in colour on occipital region below injury No.1.

18. He further deposed that all the injuries, except injury

No.5, were declared as grievous in nature and injury No.5 was

declared as simple in nature. Injuries on the person of Madan Lal,

except injuries No.5, 6 and 8, could be caused with sharp edged

weapon, like a knife.

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19. PW-9 SI Shiv Kumar deposed that on 26.02.2015 at

about 2:55 a.m., he received information that Divya and her father

had suffered injuries at the hands of appellant and were admitted in

IGMC, Shimla for treatment. Thereafter, he reached the spot and

sought opinion from the doctor regarding condition of the injured and

the doctor opined that both the injured were not in a position to make

statement. He recorded statement of complainant Tilak Raj, on the

basis of which, formal FIR was registered.

20. PW-18 SI Kulwant Singh deposed that investigation of

the case was handed over to him by ASI Shiv Singh on 26.02.2015.

On the same day, he visited the spot alongwith the Station House

Officer. The place of incident was got photographed and the blood

stained articles were taken in possession. On identification of Madan

Lal and Divya, a knife, which was semi embedded in the soil, was

taken in possession. He further deposed that on 26.02.2015,

appellant was arrested and was sent for his medico legal

examination. On 27.02.2015, clothes worn by the appellant at the

time of incident were produced by his father and the same were

taken in possession.

21. Present case relates to injuries suffered by PW-8 Divya

and PW-17 Madan Lal in the incident, which had occurred during the

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night intervening 25th/26th February, 2015. Both the injured have

deposed to the effect that they have been inflicted injuries by the

appellant with the help of a knife. Statements of the injured, being

natural, inspire confidence. There was no occasion for the injured to

have shielded the real culprit and falsely involve the appellant in this

case. As per medical evidence, injured PW-8 has suffered as many

as 24 injuries with sharp edged weapon. PW-17 had also suffered 5

injuries with sharp edged weapon. Statements of the injured with

regard to the involvement of the appellant in the crime could not be

shaken during the course of their cross-examination. Hence, after

carefully going through the testimonies of PW-8 and PW-17, we are

of the opinion that their testimonies with regard to the infliction of

injuries on their person by the applicant inspire confidence and have

been rightly believed by the learned trial Court.

22. Statements of injured are duly corroborated by the

complainant PW-16 Tilak Raj. So far as the ocular version is

concerned, the same is duly corroborated by the medical evidence.

As per the medical evidence available on record, injured had

suffered injuries from a sharp edged weapon. So far as PW-8 Divya

is concerned, she had suffered 24 injuries on various parts of her

body. As per the medical opinion, the injuries on the person of

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PW -8 Divya were dangerous to life. So far as injured PW-17 Madan

Lal is concerned, he had also suffered 8 injuries on his person and

out of the said injuries, 5 injuries were due to sharp edged weapon.

23. As per the ocular version, PW-11 Dev Raj and Mahinder

Singh had snatched the knife from the appellant. The said knife was

recovered during the course of investigation. As per the report of

Forensic Science Laboratory (FSL), dated 25.07.2017 (Ext. PX-1),

STR DNA profile obtained from the knife matched with STR DNA

profile obtained from blood sample of Madan Lal and Divya. Blood

stained clothes of the appellant were taken in possession during

investigation of the case and as per the report of FSL (Ext. PX-1),

the DNA profile obtained from the shirt of appellant matched

completely with the DNA profile of blood sample obtained from

injured Madan Lal. Thus, in the present case, the ocular version duly

stands corroborated by medical evidence as well as by the expert

opinion.

24. Learned counsel for the appellant has submitted that the

factum of recovery of knife during investigation was not put to the

appellant during his examination under Section 313, Cr.P.C.

However, the said argument raised by the learned counsel for the

appellant is without any basis, because a perusal of statement of the

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appellant recorded under Section 313, Cr.P.C., reveals that Question

Nos.49 to 51 were put to the appellant with regard to the recovery of

knife and the said questions alongwith their answers are reproduced

herein blow:-

"Q.49 It has come in the prosecution evidence against you that PW-18 thereafter, on the identification of Dev Raj and Mahinder, has taken into possession the knife Ext. P-5, which was embedded into the soil 32 feet away from room No. 37. What you have to state

about it?

Ans: I do not know.

Q.50. It has come in the prosecution evidence against you that PW-18 thereafter, prepared the sketch of knife

Ext. P-5. The sketch is Ext.PW-10/A which was witnessed by Hira Singh, Mahinder Kumar and Dev

Raj. What you have to state about it? Ans: I do not know.

Q.51.It has come in the prosecution evidence against you that PW-18 thereafter measured the knife Ext. P-5

and thereafter put the same into a parcel Ext. P-4, which was sealed with seven seals of seal K. What you have to state about it?