High Court of H.P.IN THE HIGH COURT OF HIMACHAL PRADESH,

SHIMLA

Cr.Appeal No.2 of 2011.

Reserved on: 26/09/2014.

Date of Decision:10.10.2014.

Jagdev Ram …..Appellant.

Versus

State of Himachal Pradesh. ...Respondent.

Coram

The Hon’ble Mr. Justice Rajiv Sharma, Judge.

The Hon’ble Mr. Justice Sureshwar Thakur, Judge.

Whether approved for reporting? Yes.

For the Appellant: Mr.Satyen Vaidya & Mr Vivek Sharma,

Advocates.

For the respondent: Mr.Ashok Chaudhary, Additional

Advocate General and Mr.Ramesh

Thakur, Assistant Advocate General.

_____________________ _____________________

Per Sureshwar Thakur, Judge

1. The instant appeal is directed against the

judgement of conviction, rendered on 21.12.2010, by the

learned Additional Sessions Judge, Fast Track Court,

Chamba, District Chamba, H.P., in Sessions Trial No.1/2010,

whereby the accused/appellant has been convicted for his

having committed offence punishable under Section 302 IPC

and sentenced to undergo rigorous imprisonment for life and

to pay a fine of Rs.25,000/- and in default of payment of

::: Downloaded on - 19/10/2022 20:25:21 :::CIS

High Court of H.P.

...2...

fine, to further undergo rigorous imprisonment for a period

of one year.

2. The prosecution story, in brief, is that on

27.8.2009, Dhruv Ram (since deceased) and his wife,

namely, Dillo (complainant) were grazing cattle near

Government Primary School, Sandhi and nearby to them,

Amar Nath (brother of the deceased) was also grazing his

cattle. Accused Jagdev Ram used to reside in a house at his

Nautor land at Sandhi along with his family. At about 2.45

p.m., accused Jagdev Ram came with a gun in his hand and

abused complainant Dillo and deceased. Thereafter,

co-accused Shivo @ Sheela, Bhuvneshwar Dutt and Naresh

Kumar also appeared there and in furtherance of common

intention of each other, they also started abusing the

complainant and deceased and also criminally intimated

them with threats to their life. On their requesting the

accused not to abuse them, the accused started pelting

stones on complainant, as such, she rushed towards

Government Primary School, Sandhi, whereas, deceased

rushed towards maize fields in order to save themselves.

Accused Jagdev Ram chased deceased with gun and when

deceased saw back at about 3.00 p.m., accused Jagdev Ram

shot him dead with the gun. On hearing the alarm of

::: Downloaded on - 19/10/2022 20:25:21 :::CIS

High Court of H.P.

...3...

complainant, Ward Member Piar Singh came there and she

narrated the incident to him. Her brother-in-law Amar Nath

also witnessed the occurrence. Said Piar Singh intimated

Police Post, Surgani and pursuant thereto, report Ext.PW-9/A

was made. A telephonic message was given by Constable

Inder Singh No.206 M.C.P.P. Surgani at Police Station, Kihar

and pursuant to the information, received from Piar Singh,

daily dairy report comprised in Ext.PW-8/A was made and

accordingly Inspector/SHO Pritam Singh and other officials

rushed to the spot along with camera and other things. On

reaching the spot at 9.00 p.m., the dead body was lying on

the field and complainant (wife of the deceased) was

present there and she made statement Ext.PW-1/A under

Section 154 Cr.P.C. An endorsement in the said statement

was made by SHO which was then sent to Police Station

through Constable Hoshiar Singh where F.I.R. Ext.PW-11/E

was registered. The photographs of the dead body Ext.PW-

16/A-1 to Ext.PW-16/A-8 were clicked with the digital

camera. Inquest reports Ext.PW-2/B and Ext.PW-2/C were

prepared. A docket Ext.PW-7/A was prepared and the dead

body was sent to Regional Hospital, Chamba for conducting

post mortem. Dr.M.M.Marol and Dr.Ram Kamal conducted

the post mortem on 28.8.2009 and a circular gun shot

::: Downloaded on - 19/10/2022 20:25:21 :::CIS

High Court of H.P.

...4...

wound 10 x 12 x 15 Cms on right side of chest below 4

inches from right clavicle bone corresponding to the hole of

shirt of right side of chest was found. X-Rays were also

taken. Margins of wound sh owed singing and were

irregular. Multiple fractures of ribs were seen. Pallets were

seen in the posterior chest wall. Lungs tissues were found

damaged with pallets of gun shot. Pallets and red cork of

the gun shot were extracted from the wound. The Medical

Officer preserved viscera, pallets, cork and clothes of the

deceased and parceled and sealed them and handed over

the same to the Police for forensic examination. It was

opined by the Medical Officer that the deceased had died

due to a gun shot injury leading to massive intra thoracic

hemorrhage leading to peripheral vesicular failure and

respiratory failure but the final opinion was reserved till the

receipt of report of Chemical Analyst. Post mortem report

comprised in Ext.PW-7/E was procured. Spot map Ext.PW-

16/B was prepared. Two blood stained sleepers, one blood

stained Danda, three stones stained with blood, which were

lying at the spot, along with blood stained earth, were taken

into possession vide memo Ext.PW-2/A in presence of

witnesses Piar Singh and Amar Nath which were separately

wrapped in three parcels and sealed with seal H. Blood

::: Downloaded on - 19/10/2022 20:25:21 :::CIS

High Court of H.P.

...5...

stained stones and earth were parceled in one parcel.

Sample of seal H Ext.PW-3/A was taken separately on a

piece of cloth and seal after use was handed over to witness

Piar Singh. Accused Bhuvneshwar Dutt, Sheela Devi and

Naresh Kumar were arrested on 28.8.2009 vide memo

Exts.PW-6/C, D and E. The gun, used for killing the

deceased, produced by Goutam Kumar, son of accused

Jagdev, was taken into possession vide memo Ext.PW-4/A,

which was parceled and sealed and three seals of seal A

were affixed on the parcel. Khaka of gun Ext.PW-4/B was

also prepared, sample seal was taken and the seal after use

was handed over to witness Rajmal. Accused Jagdev Ram

was arrested on 29.8.2009 vide memo Ext.PW-16/F. On

31.8.2009, accused Jagdev Ram made disclosure statement

comprised in Ext.pW-5/A under Section 27 of the Indian

Evidence Act that after gun shot, he had concealed the

empty cartridge in the Ghala (grass field) and on the

instance of the accused Jagdev Ram, empty cartridge Ext.P-

11 was recovered, which was at a distance of 100-150

meters away from the dead body and was taken into

possession vide memo Ext.PW-6/A in the presence of

witnesses Laxman Kumar and Kanth Ram. Spot map of

recovery of cartridge Ext.PW-16/G was prepared. The said

::: Downloaded on - 19/10/2022 20:25:21 :::CIS

High Court of H.P.

...6...

cartridge was parceled and sealed with seal T by applying

six seals. Specimen sample seal Ext.PW-6/B was also taken.

Accused Jagdev also produced gun licence Ext.PW-16/J from

his house which was taken into possession vide memo

Ext.PW-6/C.

3. All the parcels were deposited with MHC in

Police Station. Tatima and Jamabandi comprised in

Exts.PW-10/A and B were procured from the Patwari. The

MHC made entry in the Malkhana Register at Sr.No.123, the

abstract whereof is Ext.PW-11/A after the parcels were

deposited with him by SHO on 28.8.2009. On 29.8.2009,

Constable Madan Kumar also deposited two parcels along

with one envelope duly sealed with three seals RH. The

parcel containing viscera was sealed with ten seals and

another parcel containing clothes which too was sealed with

ten seals and entry in the Malkhana Register was made, the

abstract whereof is comprised in Ext.PW-11/B. On

31.8.2009, a parcel containing empty cartridge duly sealed

with six seals of impression T was also deposited which was

entered in the Malkhana Register at Sr.No.125. On

3.9.2009, all the parcels and envelopes were sent to FSL,

Junga through HHC Subhash Kumar vide RC No.29/09

comprised in Ext.PW-11/D in safe condition. Report of FSL

::: Downloaded on - 19/10/2022 20:25:21 :::CIS

High Court of H.P.

...7...

comprised in Ext.PX and Ext.PY were received. No contents

of alcohol or poison were seen in the viscera.

4. After completion of the investigation, challan,

under Section 173 of the Cr.P.C., was prepared and filed in

the Court. The trial court charged the accused for theirs

having committed an offence punishable under Section 302

IPC read with Section 34 IPC and accused Jagdev Ram was

also charged for an offence under Section 25 of the Arms

Act, 1959.

5. In order to prove its case, the prosecution

examined as many as 16 witnesses. On closure of the

prosecution evidence, the statements of the accused under

Section 313 Cr.P.C. were recorded, in which they pleaded

innocence. On closure of proceedings under Section 313

Cr.P.C. In defence, the accused examined one witness.

6. On appraisal of the evidence on record, the

learned trial Court, returned findings of conviction against

the accused/appellant.

7. The accused/appellant is aggrieved by the

judgment of conviction, recorded by the learned trial Court.

The learned counsel appearing for the accused/appellant

has concertedly and vigorously contended that the findings

of conviction, recorded by the learned trial Court, are not

::: Downloaded on - 19/10/2022 20:25:21 :::CIS

High Court of H.P.

...8...

based on a proper appreciation of the evidence on record,

rather, they are sequelled by gross

mis-appreciation of the material on record. Hence, he

contends that the findings of conviction be reversed by this

Court, in the exercise of its appellate jurisdiction and be

replaced by findings of acquittal.

8. On the other hand, the learned Additional

Advocate General appearing for the respondent-State has

with considerable force and vigour, contended that the

findings of conviction recorded by the Court below, are

based on a mature and balanced appreciation of evidence

on record and do not necessitate interference, rather merit

vindication.

9. This Court with the able assistance of the

learned counsel on either side, has, with studied care and

incision, evaluated the entire evidence on record.

10. The first witness, who, stepped into the witness

box to prove the prosecution case, is, PW-1 (Dillo Devi).

She in her deposition has deposed a version, which is in

square tandem with the genesis of the prosecution version,

as referred to herein-above. During the course of her cross-

examination, she admits the suggestion, put to her, that

accused Jagdev has taken Nautor land at village Sandhi

::: Downloaded on - 19/10/2022 20:25:21 :::CIS

High Court of H.P.

...9...

about 33-34 years back and had also built up a four roomed

house on the said Nautor land. She further deposes that the

case regarding breaking of teeth of her husband is pending

adjudication in a Court. She continues to depose that all the

accused had come together and accused Jagdev kept on

hurling abusive language for about 10-15 minutes. She

proceeds to depose that on their asking the accused not to

abuse them, the accused asked his family members to pelt

stones on her. This witness further deposes that while

running, her husband had covered a distance of 30 feet and

she was at a distance of about 100-150 feet from her

husband. She further deposes that when her husband fell

down, it was a sunny day. She further deposes that on

raising an alarm, her brother-in-law Amar Nath came there.

She has confronted with Ex.PW-1/A by deposing that she

had disclosed to the police that they were grazing the cattle

in a drabbad (ground) behind the temple and accused

Jagdev had commanded the remaining accused to pelt

stones.

11. PW-2 Amar Nath deposes that he was grazing

cattle in Jungle at Sandhi. He deposes that at about 2.30-3.00 p.m., he heard a gun shot but he thought that the said

fire might have been made in order to deter the crows etc.

::: Downloaded on - 19/10/2022 20:25:21 :::CIS

High Court of H.P.

...10...

He continues to depose that his sister-in-law Dillo Devi gave

him a call that his brother was shot dead and he should

come. On this, he rushed to the spot and found his brother

lying dead with injury on his chest. He continues to depose

that on his asking, Dillo Devi as to what had happened, she

disposed to him that her husband was killed by accused

Jagdev by gun shot. Thereafter, he shouted that a murder

has been committed. He deputed a boy to summon ward

member from the village, the ward member reached the

spot and then he intimated the police telephonically about

the incident. He proceeds to depose that at about 7 p.m.,

police also reached the spot. On insistence of the police, he

arranged gas lighter of kerosene. He further deposes that

police took into possession the blood stained soil, three

stones, sothi and chappals from the spot and sealed the

same in separate parcels and the seal after use was handed

over to the ward Member. The seized articles were taken

into possession under memo Ext.PW-2/A, which is deposed

to be bearing his signatures. During his cross-examination,

he deposes that he had seen the accused Jagdev going

towards his house after the gun shot was fired and 2-3 other

persons were also with accused Jagdev including one lady,

however, he deposes to have seen their back as they were

::: Downloaded on - 19/10/2022 20:25:21 :::CIS

High Court of H.P.

...11...

going towards their house. He deposes that he had not

heard accused hurling abuses to his brother and sister-in-

law. This witness admits the suggestion that he was not in

talking terms with accused and his family for the last 5-6

years and that at one point of time, his deceased brother

had uprooted the door of his house. He admits the

suggestion, put to him, that his deceased brother had been

facing several cases in the Court. However, he feigns

ignorance that the said cases were criminal.

12. PW-3 Piar Singh deposes that on 27.8.2009, he

was called to the spot by the daughter of Dillo and a small

child and he visited the spot at Sandhi where the dead body

of deceased was lying. He deposes that he informed the

police telephonically and the police came to the spot at 9.30

p.m. After inspecting the spot, the police took into

possession blood stained stones, soil, Sothi and blood

stained Chappal vide memo Ext.PW-2/A which has been

deposed to be bearing his signatures. He continues to

depose that the articles were separately parceled and sealed

and the seal after use was handed over to him an d

specimen of seal is comprised in Ext.PW-3/A which was

taken on cloth and has also been deposed to be bearing his

signatures. During his cross-examination, he denies the

::: Downloaded on - 19/10/2022 20:25:21 :::CIS

High Court of H.P.

...12...

suggestion, put to him, that the deceased had created a fear

psychosis atmosphere in the village.

13. PW-4 Rajmal deposes that he joined the

investigation on 28.8.2009. He further deposes that the gun

was taken into possession by the police vide recovery memo

Ex.PW4/A in his presence and in presence of Prem Lal.

14. PW-5 Baldev Ram deposes that on 31.8.2009

accused Jagdev had made a disclosure statement to the

police pursuant to which he got recovered one empty

cartridge from the Ghasni beneath the grass which was

taken into possession vide recovery memo Ex.PW-5/A in his

presence and in presence of Doom Ram.

15. PW-6 Kanth Ram proved the recovery of empty

cartridge at the instance of the accused.

16. PW-7 Dr. Ramkamal deposes that on 18.8.2009

he had conducted the post-mortem of deceased. He further

deposes that there was a circular gun shot wound about

10x12x15 cms on right side of chest and four inches below

right clavicle. The wound was corresponding to a hole in the

shirt and the shirt was soaked with dry blood. He further

deposes that the long tissue damage was seen in the wound

with pellets of gun shot and multiple fractures of anterior

ribs of right side was also seen. He further deposes that

::: Downloaded on - 19/10/2022 20:25:21 :::CIS

High Court of H.P.

...13...

before conducting postmortem, the dead body was

subjected to x-ray examination and films thereof have been

deposed to be Ex.PW7/B and Ex.PW7/C. He further

deposes that lung tissues were found burnt with pieces of

ribs. The pellets and red-cork of the gun shot were extracted

from the wound and sent to the forensic expert for analysis.

He continues to depose that the viscera, cloths, pellets and

cork were preserved and sealed in a parcel with seal of RH

and handed over to the police for being taken to FSL. He

deposes that in his opinion, the deceased had died due to

gun shot injury leading to massive intra thoracic hemorrhage

leading to peripheral vascular failure and respiratory failure.

He further deposes that he was assisted by Dr.M.M. Marol in

conducting the post-mortem, who also signed the post

mortem report Ex.PW7/E. The reports of the FSL have been

deposed to be Exts.PW, PX and PY. He further deposes that

the probable time, between the injury and death, was 30

minutes and between death and post mortem was 24 hours.

17. PW-8 Satish Kumar proved daily diary report

No.19, dated 27.8.2009, Ex.PW8/A which has been deposed

by this witness to be correct as per the original brought by

him in the Court.

::: Downloaded on - 19/10/2022 20:25:21 :::CIS

High Court of H.P.

...14...

18. PW-9 Inder Singh proved report No.13,

Ex.PW9/A which has been deposed to be correct as per the

original brought by him in the Court.

19. PW-10 Ghinder Singh proved tatima Ex.PW10/A

and Jamabandi of the spot comprised in Ext.PW-10/B.

20. PW-11 H.C. Rakesh Kumar proved the deposit

of the case property with him in the Malkhana of Police

Station and its further transmission on 3.9.2009 to the FSL

through HHC Subhash Kumar vide R.C.No.29/09. He

further proved FIR Ex.PW11/E, which has been deposed by

this witness to be bearing the signatures of ASI Dhanu Ram.

21. PW-12 SI Dhanu Ram deposes that on

27.8.2009, he was officiating as SHO, P.S. Kihar. He

continues to depose that on the said date, a ruqua

Ex.PW1/A was received through Constable Hoshiar Singh

No.234, on the basis of which FIR Ex.PW11/E was registered

which has been deposed by this witness to be bearing his

signatures.

22. PW-13 Hans Ram deposes that after perusal of

the investigation and taking into consideration reports of FSL

Ex. PX and PY, he prepared challan in the case and filed the

same in the Court. The challan has been deposed by this

witness to be bearing his signatures.

::: Downloaded on - 19/10/2022 20:25:21 :::CIS

High Court of H.P.

...15...

23. PW-14 HHC Subhash Kumar deposes that on

9.3.2009, six parcels and two envelopes duly sealed were

handed over to him by MHC Rakesh Kumar along with other

documents for being taken to FSL, Junga vide R.C. No.69/09

and he deposited the aforesaid parcels at FSL, Junga on

4.9.2009. He further deposes that on return, he handed over

the receipt to the MHC.

24. PW-15 Hoshiar Singh deposes that on

27.8.2009, he had accompanied SHO to the spot at village

Ladhwah. He continues to depose that SHO gave him ruqua

at 09.30 p.m. and he brought the ruqua to P.S. Kihar and

handed over the same to ASI Dhanu Ram. He further

deposes that after registration of the case, the file was given

to him, which he handed over to SHO at Ladhwah.

25. PW-16 Inspector Prittam Singh in his deposition

has deposed a version which is in square tandem with the

genesis of the prosecution version, as referred to herein-

above. In his cross-examination, he deposes that the

telephonic message from Constable Inder Singh was

received by him at 7.30 p.m. He further deposes that the

gun shot was said to be fired at 3.00 p.m. He further

deposes that the land of accused Jagdev was at a distance

of 150-200 yards from the place where the dead body was

::: Downloaded on - 19/10/2022 20:25:21 :::CIS

High Court of H.P.

...16...

lying. He denied the suggestion that whatever recoveries

were got effected by him pursuant to disclosure statements

under Section 27 of the Indian Evidence Act. He further

denied the suggestions that no blood stains were found by

the Chemical Examiner on the said articles. He denied the

suggestion that he intentionally omitted to take the darat in

possession. He further denied the suggestion that he had

recorded the statement of Amar Nath at his own.

26. The genesis of the prosecution story is

encapsulated in the ocular version qua the incident rendered

by PW-1 Dillo Devi, wife of the deceased. She has in her

examination-in-chief forthrightly deposed the factum of, on

the fateful day when she alongwith her husband had gone

to graze cattle towards Primary School, Sandhi, then at

about 1.30 p.m all the accused appeared and insisted for

settling a dispute which had occurred about three years ago,

arising from one of the accused Naresh having broken the

teeth of the deceased husband of PW-1. The insistence of

the accused upon the deceased to compromise the said

dispute was not yielded to by the deceased and PW-1 which

invoked the anger and wrath of the accused sequelling his

hurling invectives upon the accused and of accused

Bhuvneshwar Dutt, Naresh Kumar and Sheela Devi taking to

::: Downloaded on - 19/10/2022 20:25:21 :::CIS

High Court of H.P.

...17...

pelt stones at PW-1 and her husband. However, this

witness and her husband rushed towards the maize fields,

yet she deposes that accused Jagdev chased her husband

while wielding a gun and requests made by her to accused

Jagdev not to kill her husband, bore no fruit, as during the

course of chase, when her husband looked back accused

Jagdev fired a gun shot with gun Ext. P-9 recovered under

memo Ext. PW4/A. The testimony of PW-1, the ocular

witness to the occurrence, has voiced a flawless and

unblemished version qua the occurrence, which inspires

both confidence as also is credible. Despite the fact that she

has omitted to in her previous statement comprised in

Ext.PW-1/A divulge the fact of accused Jagdev having

commanded the remaining accused to pelt stones at her and

her deceased husband, may render her version to be

tainted as also when she omitted to record the factum of the

accused while appearing at the site having insisted upon her

and her deceased husband to compromise the previous

dispute which had erupted inter se them and which had

sequelled one of the accused Naresh breaking the teeth of

her husband also, may ingrain with the vice of

embellishment and improvement, the genesis of the

prosecution story of it having commenced on the deceased

::: Downloaded on - 19/10/2022 20:25:21 :::CIS

High Court of H.P.

...18...

and PW-1 having remained unyielding to the demand of the

accused to compromise the previous dispute,. Moreover,

even the factum of omission on the part of the prosecution

to join as witnesses the students or teachers of the school in

whose vicinity the occurrence took place, all also

cumulatively do not lend any strength to the defence in its,

hence, propagating the fact of the Investigating Officer

having carried out a slanted and tainted investigation into

the offence allegedly committed by the accused rather the

effect, if any, of the aforesaid gets effaced in the face of the

preeminent fact of the accused in his statement recorded

under Section 313 Cr.P.C. having admitted the factum of his

having killed the deceased with gun Ext. P9 recovered under

recovery memo Ex. PW4/A. Even in the entire trend of

cross-examination of the prosecution witnesses by the

learned defence counsel, the moot suggestions which have

been put to PW-1 and the other prosecution witnesses is of

the deceased while wielding a darat/danda having

perpetrated an assault on the accused which, however, was

repulsed by the accused. On the score of the deceased

wielding a danda/darat with which he purportedly

perpetrated an assault on the accused which, however, he

averted, is espoused to be giving ground or leverage to the

::: Downloaded on - 19/10/2022 20:25:21 :::CIS

High Court of H.P.

...19...

accused, to rear an impression in his mind or nurse an

apprehension that in case the assault purportedly

perpetrated on his person by the deceased, is not averted by

his firing a shot from the gun, which he was wielding at the

apposite time, grievous injury or even death would accrue.

Sinew and succor to the aforesaid propagation would accrue

to the defence in case it was established that there was a

face to face duel inter se the accused and the deceased at

the relevant stage/time. Besides forthright evidence ought

to upsurge portraying the fact of both the accused and the

deceased while being engaged in a duel were at a very short

distance or in close proximity to each other, on score

whereof it could be concluded that the danda or darat

wielded by the deceased with which he purportedly struck

the accused would have sequelled a grievous or lethal

injury, which was avertable only by the user of the gun

wielded by the accused, hence, rendering the penal act of

the accused to be clothed with the protective cover of it

having been prodded in exercise by the accused of his right

of private defence of body. However, a close and incisive

reading of the testimony of PW-1 omits to divulge the fact

that both the accused and the deceased were either in close

proximity to each other or were engaged in a duel.

::: Downloaded on - 19/10/2022 20:25:21 :::CIS

High Court of H.P.

...20...

Omission of portrayal by PW-1 in her deposition of the

accused and the deceased being engaged in a duel in course

whereof the deceased while wielding a danda/darat and his

while being within striking distance of the accused, his

having struck a blow with the danda/darat on the person of

the accused which, however, was repulsed/averted by the

accused. Omission of the above evidence, fosters the

inferences of (a) the accused and deceased being not in

proximity to each other and both being not engaged in a

duel in course whereof the deceased while not wielding a

danda or darat had not struck a blow with them on the

person of the accused, hence, did not necessitate its being

averted by the latter by his taking to fire a gun shot at the

deceased from gun Ex. P-9 and (b) lack of portrayal by PW-1

in her deposition of both the accused and the deceased

while being face to face or in close distance to each other,

which proximity inter se both facilitated or gave leverage to

the deceased while his wielding a danda or darat to concert

to deliver a blow with them on the person of the deceased

which was avertable by means none other than by the user

of gun at the instance of the accused, fillips an inference

that hence there is abysmal failure on the part of the

defence to facilitate this Court to clinch a finding of either

::: Downloaded on - 19/10/2022 20:25:21 :::CIS

High Court of H.P.

...21...

there being a face to face duel inter se the deceased and the

accused in which duel the deceased while being within

striking distance of the accused had delivered a darat/danda

blow on the person of the accused which had been averted

by the accused by his firing a shot from gun Ex.P-9, hence,

does not render vindicable the penal act of the accused,

inasmuch as it does not acquire the protective shroud of it

having been actuated in the exercise by him of the right of

private defence, especially when his body remained

un-endangered.

27. Accentuation to the inference hereinabove of

both the accused and the deceased being not face to face

nor also the deceased wielded a danda or darat, is lent by

the factum of PW-1 in her examination-in-chief having

unequivocally deposed of the accused having chased her

husband and while he looked back, the gun shot at him

having been fired by the accused. Now the said factum had

remained un-torn or unshred during her inexorable cross-

examination to which she was subjected. The consequent

effect, is that the factum of the accused having fired gun

shot with Ex.P-9 during the course of his having chased the

deceased stands clinched and repulses the propagation of

the defence of a purported duel having erupted inter se the

::: Downloaded on - 19/10/2022 20:25:21 :::CIS

High Court of H.P.

...22...

accused and the deceased with both being face to face or

being in close proximity to each other which gave an

opportunity to the deceased to strike a blow of darat/danda,

purportedly wielded by him at the apposite stage, also it

blunts the propagation by the defence of the deceased

wielding a darat or danda for if, he assumingly wielded so

and his being in close proximity of the accused, he would

have either hurled/flung the danda at the accused or flung

the darat at the person of the accused or would have struck

a blow with the danda or the darat on the vital organs of the

accused sequelling injuries on the person of the accused.

However, when the accused remained uninjured or has

received no injuries on his person purportedly in sequel to

the deceased having concerted to strike his body with a

danda or darat blow, the imminent conclusion which ensues

that, hence, the deceased was not wielding a danda or

darat, as a corollary, it has to be concluded that there was

no imminent or grave threat emanating from the purported

act of the deceased with his purportedly wielding a danda or

darat and its being of such magnitude so as to cause any

danger to the life of the accused, for prodding or

constraining him while exercising his right of private

defence, take to fire a gun shot with gun Ex.P-9 for averting

::: Downloaded on - 19/10/2022 20:25:21 :::CIS

High Court of H.P.

...23...

the purportedly imminent danger. As a further concomitant,

it has to be deduced especially when the factum of the

deceased being the initial aggressor stands belied that hence

the right of private defence canvassed by the defence for

extenuating or exculpating the guilt of the accused, is wholly

prevaricated as well as invented, as such, it does not acquire

any force or strength.

28. Moroever, the learned counsel appearing for the

appellant canvases before this Court that the testimony of

DW-1 while purportedly voicing and sustaining the

propagation by the defence of the accused Jagdev having

fired a gun shot with Ex.P-9 in exercise of his right of private

defence emanating from the fact of deceased having

delivered a danda blow on the person of the accused

Jagdev, who yet averted it, thereafter the deceased having

again attempted to deliver it has been contended to have

been untenably overlooked by the learned trial Court.

However, the said contention is rendered rudderless in the

face of the fact of his veracity in his examination-in-chief

having come to be impeached in his cross-examination

wherein he deposed that village Ladhwah and Lakho are

situated between the road opposite to which the grazing

fields are situated and the distance of the road from the

::: Downloaded on - 19/10/2022 20:25:21 :::CIS

High Court of H.P.

...24...

place where the dead body was lying is one kilometer

rendering him hence incapacitated to see the occurrence.

The fact which further taints the credibility of his deposition

is a further admission in his cross-examination of the dead

body being not visible from the place where he was grazing

his cattle. Obviously then when from the place where he

was purportedly grazing the cattle at the relevant time, the

dead body of the deceased was not visible, consequently too

as a natural corollary the occurrence qua which he renders

an eye witness account in sustaining the defence of the

accused is too rendered incredible.

29. In view of the above, it is held that the learned

trial Court has appreciated the evidence in a mature and

balanced manner and its findings, hence, do not necessitate

interference. The appeal is dismissed being devoid of any

merit and the findings rendered by the learned trial Court

are affirmed and maintained. Records of the learned trial

Court be sent down forthwith.

( Rajiv Sharma )

Judge.

10.10.2014. ( Sureshwar Thakur )

(TM/JAI) Judge.

::: Downloaded on - 19/10/2022 20:25:21 :::CIS