Swarn Kaur Vs Gurmukh Singh .

Page 1

Reportable

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1624 OF 2008

Swarn Kaur …. Appellant

VERSUS

Gurmukh Singh and Ors. …. Respondents

J U D G M E N T

Fakkir Mohamed Ibrahim Kalifulla, J.

1. This appeal is directed against the judgment of the Division

Bench of the High Court of Himachal Pradesh, dated 18.06.2008,

in Crl.A.No.280 of 2005. The de facto complainant is the

appellant. The respondents 1 to 5 were arrayed as accused 1 to

5 along with Gurnam Singh and Jagtar Singh, two other accused

in Sessions Trial No.13/7 of 2001/2002.

2. The case of the prosecution was that on 30.03.2002, a group

of pilgrims were led by the second accused to Shah Talai for

worshiping Baba Balak Nath. The deceased Jeet Singh, was taken

by the second accused along with the team for the purpose of

cooking. The pilgrims reached Shah Talai on 30.03.2002. On

reaching Shah Talai and after paying obeisance at the temple,

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the pilgrims stayed at Dana Mandi in Shah Talai. The accused

party appeared to have been not satisfied with the food prepared

by Jeet Singh and being annoyed by the said factor, it was

alleged that the accused beat the deceased Jeet Singh, after

tying his hands with Parna (a piece of cloth used both as head-

gear and towel by the villagers). The deceased was taken

towards a khud in a jeep-taxi belonging to P.W.6, Milap Chand.

The accused stated to have given fist blows and kicks to the

deceased and on the next day morning the body of Jeet Singh

was found in the bed of a rivulet known as ‘Saryali Khud’, near

Dana Mandi.

3. Some other pilgrims, not connected with the group led by the

second accused, after noticing the body of the deceased, stated

to have brought it out and placed it on the dry portion of the

rivulet bed and the information was passed on to P.W.1. P.W.1 is

a village Up-pradhan of Gram Panchayat Naghiar. P.W.1 in turn

gave the information to the police station Thalai on 31.03.2002,

at about 10.45 a.m. by telephone informing that a dead body of

some Punjabi male was lying in the bank of Saryali Khud. Based

on the said information P.W.19 A.S.I., along with other police

officials reached the spot and prepared the inquest report. In the

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meantime, A2, A4 and A5 along with A7 (acquitted accused)

appeared to have proceeded to the Shah Talai police station and

reported to P.W.17, M.H.C. about the missing of one of their

companion. P.W.17 directed the four of them to go to Saryali

Khud and find out whether, the dead body was that of their

missing companion. They went to the place where the body was

found by P.W.19 and after inspecting the body A2, A4, A5 and A7

told P.W.19 that he was not the person who was missing viz., Jeet

Singh. P.W.19 after conducting the inquest, sent the body for

post-mortem and the post-mortem was carried out by P.W.23, Dr.

A.K. Sarma. Exhibit P.W.23/A is the post-mortem report, wherein

the post-mortem doctor has noted two injuries. The injuries were

:

“(a) Multiple contusions on both knee and below the

knee, reddish brownish scab formed, underline bones

are normal.

(b) Contusion over the xiphisternum 2 cm x 1 cm

reddish brown scab formed, under lying bone normal.”

P.W.23 gave the opinion in exhibit P.W.23/A that the cause

of death was the head injury leading to shock.

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4. Be that as it may, on the early morning of 01.04.2002, the

pilgrims led by the second accused, reached Ferozpur District of

Punjab. The second accused met the appellant and informed her

that her husband had gone missing at the place of Baba Balak

Nath; that three of their team members have stayed back in

search of her husband and they are likely to get the information

in the evening by 6.00 p.m.

5. According to the appellant while no information about her

missing husband was forthcoming from the accused, on

04.04.2002, A2 and A5 again met her, as well as her son P.W.12,

Angrej Singh and negotiated for a settlement by way of payment

of a sum of Rs.1,00,000/- as compensation, by stating that her

husband Jeet Singh was no more. Thereafter, the appellant

accompanied by her brother-in-law Ajit Singh and Gurbanch

Singh, stated to have gone to Shah Talai police station on

14.04.2002 and lodged an F.I.R. (Ex.P.W.2/A) at the police station.

The appellant identified her husband from the photo of the dead

body shown to her, besides identifying the clothes and purse of

the deceased. Thereafter, the investigation commenced.

6. On 15.04.2002, A2, A6 and A5 were arrested at village Baltoha

and were remanded to police custody by the Court. On

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17.04.2002, based on the disclosure statement of A2, the turban,

parna, bag, shirt, blanket and cooking utensils of the deceased,

Jeet Singh, were recovered from the house of A2 at village

Baltoha. The first and the third accused were arrested on

19.04.2002, and they stated to have identified the place of

occurrence. A4 and A7 were arrested on 06.05.2002, and based

on the admissible portion of the disclosure statement of A4, a

stone which was thrown below the bus stand of Deothsidh, was

recovered. The prosecution in toto examined 23 witnesses and in

the Section 313 questioning, the accused denied the case of the

prosecution and no defence evidence was let in on behalf of the

accused.

7. One relevant statement in the Section 313 questioning of A4

when it was put to him that the prosecution evidence against him

that all the pilgrims except Jeet Singh, returned to the native

place on 01.04.2002 and what he had to say about it, A4 in his

answer stated as under:

“It is correct. We all retuned except Jeet Singh, but he was missing from Shah Talai and we have lodged report with the police at P.S.Talai about missing of Jeet Singh.”

8. Again in Question No.20, it was put to A4, that in the

prosecution evidence against him it had come to light that on

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01.04.2002, at about 9.00 A.M., accused Joginder Singh @ Kala,

went to the house of Smt.Swarn Kaur and told her that her

husband Jeet Singh had been missing from Shah Talai and that he

had retained three persons in Shah Talai to trace out Jeet Singh

and further told Smt.Swarn Kaur that Jeet Singh would return in

the evening, A4 answered as follows:

“We all persons had went to the house of Smt. Swarn Kaur and told that Jeet Singh was missing from Shah Talai and that we told that we have lodged a report about his missing with the police.”

9. With the above evidence on record and the stand of the

accused, the Trial Court found accused 1 to 5 guilty of the

charges falling under Section 302 r/w Section 34 and Section 201

r/w Section 34 of I.P.C. The Trial Court, however acquitted A6

and A7 of all the charges. Ultimately, after finding accused 1 to 5

guilty of the above charges, the Trial Court imposed the

punishment of imprisonment for life for the offence under Section

302 r/w Section 34, besides imposing a fine of Rs.10,000/- each

and in default of payment of fine, further sentence of

imprisonment for six months each. For the offence proved under

Section 201, all the five accused were sentenced to rigorous

imprisonment for one year, apart from a fine of Rs.2,000/- each

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and in default, imprisonment for one month each. The sentence

were directed to run concurrently.

10. All the five accused preferred an appeal before the High

Court of Himachal Pradesh in Crl.A.No.280 of 2005 and the High

Court having reversed the judgment of the Sessions Court and

set aside the conviction and sentence imposed on them and

there being no further appeal at the instance of the State, the de

facto complainant has come forward with this appeal.

11. We heard Mr. Vineet Dhanda, learned counsel for the

appellant and Mr. Neeraj Kumar Jain learned senior counsel for

the respondent accused.

12. The learned counsel for the appellant contended that the

deceased was taken by the second accused along with the other

accused and the pilgrims for cooking purposes, on 27.03.2002

and that on 31.03.2002, the dead body of the deceased was seen

by P.W.1, the village Up-pradhan, who preferred a complaint to

the police. According to the learned counsel, the accused 1 to 5

were last seen along with the deceased when they travelled in

the jeep-taxi belonging to P.W.6; that in the evidence of P.W.6 it

has come to light that the accused hit the deceased by fist, apart

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from giving him indiscriminating kicks; that his hands were tied

with a parna and that they got themselves dropped at Saryali

Khud, near Dana Mandi. The dead body of Jeet Singh was found

in the bed of the rivulet Saryali Khud and that the accused who

stated to have reported about the missing of Jeet Singh to Shah

Talai Police on 31.03.2002, were directed to see the dead body

near the rivulet, and though the accused went there and saw the

dead body, for reasons best known to them, did not identify the

same, though it was the dead body of Jeet Singh.

13. The learned counsel contended that it has come out in

evidence that on 01.04.2002, after returning from the pilgrimage,

A2 and A4 went to the home of the appellant and informed that

the deceased went missing at Shah Talai and that a report has

been lodged with the police. The learned counsel contended that

the said fact was admitted by A4 in the Section 313 questioning

and therefore, it was the responsibility of the accused to have

satisfactorily explained as to how the deceased was missing. The

learned counsel further contended that though on behalf of the

accused it was claimed that they preferred a complaint with the

police on 31.03.2002, nothing was brought on record to show

that any serious complaint was lodged with the police to trace

the deceased. Per contra, when they stated to have gone to the

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police station of Shah Talai on 31.03.2002, P.W.17 advised them

to go and see whether the dead body lying at the rivulet was the

body of deceased and that the accused who had gone there and

met P.W.19 deliberately did not identify the body of the deceased

Jeet Singh. The learned counsel submitted that their presence at

the rivulet for the purpose of identification was duly noted as per

the statements recorded by P.W.19, which were marked as

Ex.P.W.19/G,H & J. The learned counsel, therefore, contended

that the chain of circumstances leading to the involvement of the

accused in the killing of the accused, were duly brought out in

evidence by the prosecution and that the conviction and

sentence imposed by the learned Sessions Judge was perfectly

justified. The learned counsel contended that the interference

with the same by the High Court, therefore, was liable to be set

aside.

14. As against the above submissions, Mr. Neeraj Kumar Jain

learned senior counsel appearing for the respondent accused,

submitted that there were very many missing links in the chain of

circumstances and that if really the accused persons had gone to

the place where the dead body of Jeet Singh was lying as claimed

by the prosecution, there was no reason why the said fact was

not recorded in the inquest report and their signatures were not

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obtained in that report. According to the learned senior counsel,

at the police station when they went to report about the missing

of Jeet Singh, their signatures were obtained in blank papers,

which were fabricated to the advantage of the prosecution for

foisting a false case against the accused Nos.1 to 5.

15. The learned senior counsel also contended that there was

long delay in the filing of the F.I.R. and that by itself would vitiate

the case of the prosecution. The alleged killing of the deceased

was on 31.03.2002. The appellant lodged the F.I.R. with Shah

Talai Police Station only on 14.04.2002. The learned senior

counsel contended that there was no valid explanation for the

enormous delay in the filing of the complaint by the appellant.

16. The learned senior counsel by referring to the injuries noted

on the body of the deceased contended that there were only

multiple contusions and if really the deceased was beaten by

several persons, there would have been apparent swelling on the

body, which was not present and, therefore, the story of the

prosecution cannot be believed.

17. The learned senior counsel, therefore, contended that the

various circumstances, which were listed out by the High Court

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and the lack of proper evidence to support the said

circumstances, weighed with the High Court in interfering with

the conviction and sentence imposed by the learned Sessions

Judge and the same does not call for interference.

18. The learned counsel appearing for the appellant relied upon

the decisions in Brahm Swaroop and another vs. State of

Uttar Pradesh - (2011) 6 SCC 288 and Podda Narayana and

others vs. State of Andhra Pradesh - AIR 1975 SC 1252, as

well as Gurnam Kaur vs. Bakshish Singh and others - AIR

1981 SC 631.

19. Having heard the learned counsel for the appellant, as well

as the respondent accused and having perused the judgment of

the Trial Court, as well as that of the High Court, we find that this

was a case based on circumstantial evidence. Having noted the

facts and the evidence led before the Trial Court, the following

facts are not in dispute viz.,

(a) There was a pilgrimage tour organised at the instance of

the second accused, which consisted of about 100

pilgrims including other accused viz., A1, A3, A4 and A5,

as well as A6 and A7.

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(b) The deceased Jeet Singh was taken by the second

accused along with the pilgrims for the purpose of

cooking.

(c) The evidence of P.W.6 was to the effect that the

deceased was carried in his jeep taxi bearing Registration

No.PB-10D-0507 on 31.03.2002 and that his hands were

tied with a parna.

(d) According to P.W.6, while they were travelling, the

deceased was mercilessly beaten by all the accused

persons.

(e) It is the stand of the respondent accused that the

deceased was missing on and from 31.03.2002 and that

they reported the same to the Shah Talai Police Station.

(f) While according to P.Ws.17 and 19 when the accused

persons went and reported to P.W.17 about the missing

of the deceased Jeet Singh, they were directed to report

to P.W.19 to find out whether the dead body lying at the

rivulet was the body of the deceased. According to the

accused they were not asked to go to the said riverbed

for identification. On the other hand, it was claimed

that their signatures were obtained in blank papers,

which was fabricated later on by the prosecution.

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(g) Admittedly on 01.04.2002, A2 and A4 went to the house

of the deceased Jeet Singh and informed the appellant

about the missing of the deceased from the pilgrims

group.

(h) According to P.W.17 and P.W.19 after the appellant filed

the F.I.R. on 14.04.2002, the photograph of the dead

body of Jeet Singh was shown to her, which was duly

identified and that she also identified the clothes worn by

the deceased, as well as the purse belonging to the

deceased.

(i) According to the appellant, after informing her about the

missing of the deceased by A2 and A5, on 01.04.2002

and subsequently on 04.04.2002, they came and

informed her that her husband was no more and that

they were prepared to pay a sum of Rs.1,00,000/- by way

of compensation and that she should not go to the police

and that her son P.W.12 was also present at that time.

(j) The postmortem report Ex.P.W.23/A revealed that there

were multiple contusions on the knee and below the knee

of the deceased, apart from contusions in the head of the

deceased, which according to the postmortem doctor

P.W.23 was fatal to the deceased.

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(k) The evidences of P.W.1, P.W.2, P.W.6 and P.W.12, read

together discloses that the deceased went along with the

accused who were part of the pilgrims group of about

100 persons on 27.03.2002 and that while all others

returned back on 31.03.2002, the deceased alone did not

return and for which there was no valid explanation

offered at the instance of the accused, except stating

that they made a report at Shah Talai police station

about the missing of the deceased.

20. By referring to the above factors, when we note the

circumstances, which were put against the accused by the

prosecution, we find that the following circumstances have to be

noted. In our considered opinion, the Hon’ble High Court failed to

analyze all the circumstances which were existing, while only a

few of them were noted by the High Court while examining the

correctness of the judgment of the Trial Court. The

circumstances which were existing as against the accused can be

stated as under:

(i) At the instance of A2, the deceased Jeet Singh was

engaged as a cook to come along with the pilgrims to

Shah Talai to worship Baba Balak Nath on 27.03.2002.

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(ii) P.W.6 in whose jeep taxi the accused stated to have

travelled along with the deceased Jeet Singh, was totally

an independent witness, who had no axe to grind against

the accused.

(iii) The version of P.W.6, read along with the postmortem

report Ex.P.W.23/A and oral evidence of P.W.23, the

postmortem doctor, it has come to light that the

deceased Jeet Singh, suffered injuries viz., multiple

contusions below his knee and also severe head injury.

(iv) The factum of ‘missing of the deceased’ Jeet Singh, was

admittedly said to have been reported by the accused

themselves, first to the police station at Shah Talai and

then on 01.04.2002, to the appellant.

(v) There was no document produced on behalf of the

accused to show that any earnest effort was taken by

the accused to trace the deceased after he was

reported to be missing from 31.03.2002. According to

P.W.17 and P.W.19, the accused were advised to go and

see a dead body lying at the rivulet bank and that after

checking the body in the presence of P.W.1 and P.W.19,

the accused stated that the said dead body was not

that of the deceased.

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(vi) As far as the identification of the dead body of the

deceased, the same was established by the

identification made by P.W.2, the appellant, by looking

to the photograph of the deceased and also the clothes

worn by him, as well as the purse belonged to the

deceased. The said statement of the appellant as

regards the identification based on the photographs

shown to her, as well as the belongings of the deceased

was not disputed at the instance of the accused.

(vii) The recovery of the stone at the instance of A4, which

was alleged to have been used in the offence was also

duly established.

21. Keeping the above circumstances in mind, when we test the

submissions made on behalf of the appellant, as well as that of

the respondent accused in so far as the circumstances are

concerned, it has come in evidence through P.W.2 and P.W.12

that A2 and A4 informed the appellant after 01.04.2002 i.e., on

04.04.2002 that the deceased was reported to be missing earlier

and was stated to be dead and according to P.W.2 and P.W.12

the said accused offered to pay a sum of Rs.1,00,000/- by way of

compensation, so that the appellant did not report the matter to

the police.

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22. According to P.W.2, as the incident occurred in the State of

Himachal Pradesh and she was living in a village in the State of

Punjab, it took some time for her to arrange for her trip to

Himachal Pradesh to lodge the complaint and in that process she

could go to the Police Station at Shah Talai only on 14.04.2002,

where she identified the photographs of the dead body of the

deceased along with his other belongings.

23. According to P.W.19, based on Exhibits P.W.19/G, J and I, the

statements of the accused that the dead body found in the rivulet

was not that of the deceased Jeet Singh. When P.W.19 was

confronted as to why the statement of the accused about the

identification of the dead body was not noted in the inquest

report, P.W.19 came forward with an answer that since the

accused made it clear that the dead body was not that of the

deceased Jeet Singh, he felt that there was no necessity to make

a note of it in the inquest report.

24. Keeping the above circumstances which exist in the case on

hand, when we consider the submissions of the learned counsel,

as far as the first circumstance is concerned, there is no dispute

about the engagement of the services of the deceased Jeet Singh

as a cook to go along with the pilgrimage tour organised by the

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second accused on 27.03.2002. Therefore, the said circumstance

was fully established.

25. As far as the second circumstance viz., that the deceased

Jeet Singh was found in the company of the accused when they

were travelling together in the jeep taxi bearing Reg.No.PB-10D-

0507 is concerned, the evidence of P.W.6 was unassailable. It

has been found by the Trial Court that the evidence of P.W.6 was

categoric in that respect and that nothing contra was elicited

from him to take a different view.

26. When once that factum of the travel of the deceased along

with the accused is found to be true, then the next circumstance

to be examined is the alleged violent assault made by the

accused on the body of the deceased as stated by P.W.6, when

they were travelling together in his jeep taxi. When once the

travel undertaken by the accused along with the deceased in the

jeep taxi belonging to P.W.6 was found to be true, the point for

consideration is as to why the version of P.W.6, as regards the

brutal assault and the injuries inflicted upon the deceased at the

instance of the accused, should not be believed. In the course of

the cross examination of P.W.6, it was not brought forth as to

why he was enemically disposed of towards them or as to why

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the P.W.6 was harbouring any other grudge against the accused

in order to unnecessarily implicate the accused to the alleged

assault on the deceased. The vehicle was a jeep, therefore, when

five of them were sitting together along with the deceased in the

jeep and when a brutal assault was inflicted upon the deceased,

there is every possibility of P.W.6 noticing the assault inflicted

upon the deceased. If that be so, his version that the deceased

was beaten repeatedly and mercilessly below the knees and

other parts of the body as stated by him, have to be accepted in

toto, without any scope for contradiction.

27. When once the said factum of the assault cannot be doubted,

the further evidence of P.W.23 viz., the postmortem doctor, read

along with the postmortem certificate Ex.P.W.23/A, sufficiently

demonstrate the nature of injuries sustained by the deceased viz.

the multiple contusions below the knee, as well as serious injuries

on the head of the deceased. Therefore, the said circumstance of

the accused causing the injury on the body of the deceased and

the ultimate death of the deceased due to the said injury is a

circumstance, which has been proved without any iota of doubt.

28. When we come to the other circumstance viz., that the

accused themselves reported to the Shah Talai police about the

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missing of the accused, the said circumstance has to be

necessarily considered along with the following circumstances

described by P.W.17 and P.W.19, viz., their proceeding to the

rivulet where the dead body was found by P.W.1, which was

reported to the very same police station and that P.W.19 had

gone to the said spot for making necessary enquiries.

29. The question for consideration is whether the accused had

gone to report the incident to the police and what were the

subsequent events after the said reporting. In this context, the

evidence of P.W.17, to some extent support the version of the

accused about their reporting to the police about the missing of

the deceased on 31.03.2002. Though the accused took the stand

that after reporting at Shah Talai police station, they did not go to

the rivulet as claimed by the prosecution, according to the

prosecution, P.W.17 directed them to go to the rivulet and find

out as to whether or not the dead body lying there was the dead

body of the deceased. In so far as the report of the missing of

the deceased is concerned, since there were no two contradicting

views, we do not wish to dilate further on that issue.

30. When we examined the disputed question about the visiting

of the accused to the place viz., the rivulet where the dead body

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was found, the prosecution relied upon the evidence of P.W.17

and P.W.19 and the statements of the accused in Ex.P.W.19/G,J

and K.

31. On behalf of the accused, it was contended that their

signatures were obtained in blank papers, which were

subsequently fabricated by the police to suit their convenience.

As far as the said statement is concerned, except the ipse dixit

there was no other evidence to support the said stand. It is quite

possible that when the accused reported to the police station

about the missing of the deceased, as the S.H.O., P.W.17 would

have directed them to go to the spot where the dead body was

reported to be lying in order to ensure whether the said body

either belonged to the deceased or not. There is no reason to

discard the evidence of P.W.17, as well as that of P.W.19 on that

score, simply because they were official witnesses. The inquest

report viz., Ex.P.W.19/A, postmortem report Ex.P.W.23/A, the

evidence of P.W.1 and P.W.23, as well as P.W.2, sufficiently

establish that the dead body, which was found at the rivulet was

the body of the deceased Jeet Singh. In the said background it

will have to be held that the accused did visit the rivulet and

failed to identify the body of the deceased as stated by P.W.19.

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Except mere denial, nothing was brought in evidence to

disbelieve the said view of P.W.19.

32. In such circumstances, it is not known as to why the accused

should have merely stated that the body was not that of the

deceased Jeet Singh. The statements in Ex.P.W.19/G, J and K

were rightly relied upon by the Trial Court to affirm the position

that the accused came forward with the stand that the body

found on the rivulet was not that of the deceased.

33. Therefore, a conspectus consideration of all the above proved

facts, only disclosed that the accused deliberately failed to

identify the body of the deceased, when the same was shown to

them at the spot by P.W.19, pursuant to the direction of P.W.17.

Such a deliberate stand of the accused in not identifying the dead

body of the deceased only goes to show that the accused wanted

to suppress the truth, for reasons best known to them.

Therefore, the last of the above circumstances viz., factum of

missing of the deceased Jeet Singh, as from 31.03.2002, were

proved by the reporting of the same by the accused themselves

to the police and also to P.W.2 on 01.04.2002. When once the

said circumstance of the missing of the deceased Jeet Singh was

established beyond reasonable doubt, the conduct of the accused

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in their deliberate failure to identify the deceased Jeet Singh,

when his body was shown to them at the rivulet by P.W.19, was a

serious circumstance, which has to be considered and held

against the accused.

34. With that when we come to the next question as to the

failure of the accused in not having come forward with any

acceptable explanation for not taking any steps by them to trace

the missing of the deceased, except stating that they reported

him missing to the police is yet another circumstance creating

serious doubts about the credibility in their stand. When

admittedly, the deceased was engaged at the instance of A2 for

the purpose of cooking food for the pilgrims and subsequently he

was found missing when the tour programme was on going, we

fail to understand as to how by taking a mere stand that such

missing of the person was simply reported to the police without

any further action taken in that respect is one other circumstance

to be considered against the accused. When the deceased was

engaged and was taken along with the pilgrims, which was led by

the second accused, it was the responsibility of the second

accused to have shown what were the earnest efforts taken by

him to trace the whereabouts of the deceased. Unfortunately,

except the mere statement that along with A3 and A4, he went to

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Shah Talai police station and reported about the missing of the

deceased, nothing else was shown as to what were the further

steps taken by him to trace the deceased. Further, the evidence

of P.W.2 that the accused offered to compensate the missing of

the deceased was yet another circumstance to be taken into

account while considering the guilt of the accused.

35. Therefore, the said conduct of the accused would only go to

show that the said circumstance is also one other relevant

circumstance, which has to be considered along with the other

circumstances, which were all found proved and adverse against

the accused.

36. With that when we come to the last of the circumstance viz.,

the version of P.W.2 and P.W.12 that after reporting about the

missing of the deceased to them by A2 and A3 on 01.04.2002, on

04.04.2002, they came and reported that the deceased was no

more and that they were prepared to pay a sum of Rs.1,00,000/-

by way of compensation, was last of the circumstance which if

accepted to be true would be a clinching piece of circumstance,

that would complete the other chain of circumstances to fasten

the alleged offence against the accused persons. The Trial Court

which had the advantage of watching the demonour of P.W.2 and

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P.W.12, has noted that no serious answer was elicited from the

mouth of the said witnesses, as regards the alleged offer of

compensation made by A2 and A4. There is no valid reason to

interfere with the said conclusion of the Trial Court in the absence

of any other legally acceptable counter evidence to doubt the

version of P.W.2 and P.W.12. Therefore, if A2 and A4, had made

an attempt and offered the compensation of Rs.1,00,000/- after

informing P.W.2 about the death of the deceased, the only

conclusion which could be drawn based on the other chain of

circumstances, which we have found to have been established

without any scope of contradiction, was the culpability of the

accused in having eliminated the deceased by inflicting the

injuries upon him, as narrated by P.W.6 and as found to have

existed by the expert witness viz., the postmortem doctor P.W.23

in Ex.P.W.23/A.

37. We are convinced that every one of the circumstances which

were demonstrated to have been proved, sufficiently established

the guilt of the accused and consequently, the conclusion of the

Trial Court in having found the accused guilty was perfectly

justified and the interference with the same by the High Court

without sufficient reasoning was therefore, liable to be set aside.

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38. Now, we address as to the nature of the offence committed

by the accused. PW-23, Dr. A.K. Sharma, who conducted the post-

mortem examination, has found the cause of death to be the

head injury. But, the question is whether that itself would be

sufficient to hold the accused guilty of the offence under Section

302 of the Indian Penal Code. The injuries found on the person of

the deceased, as quoted in the preceding paragraph of the

judgment, shows presence of only a small contusion of the size of

2 cm x 1 cm on the xiphisternum and the underlying bone was

also found to be normal.

39. It is well settled that intention is always lodged in the mind

of the accused but, to gather the intention one of the relevant

factors which the court looks into is the nature of injury inflicted

on the deceased. In our opinion, from the nature of injuries found

on the person of the deceased it cannot safely be said that the

accused assaulted the deceased with intention to cause such

injury so as to cause death. It appears to us that the accused

persons were upset by the poor quality of food cooked by the

deceased and, therefore, assaulted him. The nature of injury or

the weapon used do not suggest that the accused assaulted him

with the intention of causing death. However, we are of the

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opinion that the accused knew that the injury inflicted by them is

likely to cause death. Hence, in our opinion, the accused shall be

liable to be convicted for offence under Section 304 Part II of the

Indian Penal Code. In the facts and circumstances of the case, we

are of the opinion that sentence of 7 years’ rigorous

imprisonment each and fine of Rs.50,000/- each shall meet the

ends of justice. Each of the accused shall deposit the fine amount

within three months failing which they shall suffer imprisonment

for a further period of one year. Out of the fine amount the

appellants shall be paid a sum of Rs.2 lakhs.

40. The said accused 1 to 5 are directed to surrender forthwith

before the Additional Sessions Judge, Ghumarwin, District

Bilaspur, Himachal Pradesh, who shall hand them over to the

concerned police for serving the remaining sentence. In the

result, the appeal is allowed, the judgment and order of acquittal

passed by the High Court is set aside and the accused are

convicted and sentenced in the manner indicated above.

………….……….…………………………..J. [Chandramauli Kr. Prasad]

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...……….…….………………………………J.

[Fakkir Mohamed Ibrahim Kalifulla]

New Delhi; July 03, 2013.

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