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High Court Of Himachal Pradesh
R.S.PATHAK,D.B.LAL
STATE - Appellant
Versus
LOBSANG SHARAP - Respondent
Cr. A. No. 10 of 1971
Decided On : 05/12/1972
CRIMINAL APPEAL - SECTION 302, 309 IPC - MURDER AND ATTEMPT TO COMMIT SUICIDE - CHILD WITNESS - CREDIBILITY - CORROBORATION - MEDICAL EVIDENCE - MOTIVE - CONDUCT OF WITNESSES - ADMISSIBILITY OF CONFESSION - SECTION 164 CRPC - CHANGE OF DEFENCE - INVESTIGATION DEFECTS - BENEFIT OF DOUBT.
Fact of the Case:
The accused, Lobsang Sharap, was charged with murder and attempted suicide for killing Lobsang Zimba and then attempting to kill himself. The prosecution's case was that the accused attacked the deceased with a dagger and then ran away, while the accused claimed that he was sleeping and was attacked by unknown persons.
Finding of the Court:
The court found that the testimony of the child witness, who was the only eyewitness, was unreliable due to contradictions and lack of understanding of the duty to speak the truth. The court also found that the medical evidence was inconclusive and that there was no motive for the accused to attack the deceased. Additionally, the court found that the investigation was defective and that the confession made by the accused was inadmissible as it was not recorded in accordance with Section 164 of the Criminal Procedure Code.
Issues: 1. Whether the testimony of the child witness was reliable. 2. Whether the medical evidence was conclusive. 3. Whether there was a motive for the accused to attack the deceased. 4. Whether the investigation was defective. 5. Whether the confession made by the accused was admissible.
Ratio Decidendi: 1. The court held that the testimony of the child witness was unreliable due to contradictions and lack of understanding of the duty to speak the truth. The court noted that the child witness had made several contradictory statements and that he had not been properly questioned by the trial judge to ascertain his understanding of the duty to speak the truth. 2. The court held that the medical evidence was inconclusive. The court noted that the doctor who examined the accused had given hesitant evidence and that the weapon of offence did not match the injuries found on the deceased. 3. The court held that there was no motive for the accused to attack the deceased. The court noted that the accused and the deceased were not close relatives and that there was no evidence of any altercation between them. 4. The court held that the investigation was defective. The court noted that the First Information Report was not properly recorded, that the blood grouping test was not done, and that the stone piece was recovered on the next day. 5. The court held that the confession made by the accused was inadmissible. The court noted that the confession was recorded during investigation and that the procedure laid down in Section 164 of the Criminal Procedure Code was not followed.
Final Decision: The court dismissed the appeal and upheld the acquittal of the accused.
D. B. Lal, J. :- This is an appeal by the State against the judgment dated 24th October, 1970 of the Sessions Judge Kangra, acquitting the accused Lobsang Sharap (60 years) of the charges under Sections 302 and 309 of the Indian Penal Code for committing the murder of one Lobsang Zimba (35 years) on 20th June, 1968 and thereafter attempting to commit suicide by inflicting injuries on his person.
2. The prosecution case was, that both the accused and the deceased is well as many others were Tibetans and were occupying a building known as Alamanzil, Dalhousie their resting house as they were patients of tuberculosis. The accused Lobsang Sharap was deputed to distribute ration to his fellow Tibetans. The deceased Lobsang Zimba from sometime before 20th June, 1968 was in the service of some tourists who had arrived in Dalhousie and everyday in the evening he used to take for a stroll a young child of one of the tourists. The deceased used to be accompanied by a fellow-Tibetan child (6 years) by the name Chima Chharing (P. W. 18). They used to return to Alamanzil at about 8 P. M. everyday. Accordingly on 20th June, 1968 both of them had returned at about 8.30 P. M. and when the deceased Lobsang Zimba was entering the kothi Alamanzil and reached the staircase, he was asked by the accused from where he was coming. Before the deceased could reply, it is stated that the accused Lobsang Sharap gave him a blow by the dagger which he was holding on his back below the left shoulder. After receiving the wound, the deceased fell down over the staircase while the accused ran away. The lad Chima Chharing saw the occurrence. The accused had also raised an alarm by shouting that he was being killed. Several Tibetans including Tashi (P. W. 19) and Namla (P. W. 20) had arrived and the lad narrated to them how the incident took place. It is stated that these two persons also saw the accused running away with the dagger in his hand. However, they did not give a chase, nor did they raise any alarm. The accused thus made good his escape. One Dawa who was the leader of the camp, thereafter went to the Police Station and lodged the First Information Report (Ex. P. U.) and came back to the scene of occurrence along with the police. Soon after the assault, Lobsang Zimba had died and was lying with face downwards over the flight of stairs which he had attempted to negotiate. After completing the preliminary investigation at the spot, it is stated that the police followed the trail of blood which was found lying on the ground and they reached near another kothi which is known as Mary Villa. At that spot reclining against a stone wall, the accused was found lying in an unconscious state. Injuries were noticed on the skull, chest and genital organs of the accused. He was removed to the hospital. It was stated that the accused made a disclosure statement at the hospital, and as a result to that, the investigating officer searched out the dagger which was found lying by the side of a bush at some distance below Alamanzil. In this manner, the recovery of the dagger was made. The investigating officer also found a piece of stone embedded in that wall smeared with blood and some human hair were also found mashed in it. Accordingly the said stone along with blood and pieces of hair, was recovered and was subsequently sent to the chemical examiner for report. It is stated that the condition of the accused was found serious and the investigating officer reported to the Sub-Divisional Magistrate one Shri P. Chakaravarti (P. W. 2) for recording his dying declaration. Accordingly the said Magistrate went to the hospital and recorded the statement (Ex. PL) of the accused on 20th June, 1968.The accused, however, subsequently recovered and was prosecuted for the offence of murder and also for attempting to commit suicide.
3. The defence of the accused was one of denial. He did not even admit that he gave any statement to the Magistrate. Rather he stated that he was
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