1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.A No.280 of 2005 Decided on : 18.06.2008 Gurmukh Singh and others. …Appellants. Versus State of H.P. …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 yes For the Appellants : Mr. Jagdish Vats, Advocate with Mr. Neeraj Sharma Advocate. For the Respondent : Mr. P.K. Sharma, Addl. Advocate General with Mr. Ashok Chaudhary & Ramakant Sharma, Advocates. Surjit Singh, Judge (Oral ) Appellants Gurmukh Singh alias Bhola, Joginder Singh alias Kala, Surjeet Singh alias Sita, Angrej Singh and Kewal Singh are aggrieved by the judgment of the Sessions Court whereby they have been convicted of offences under Sections 302 read with Section 34 and 201 I.P.C. and sentenced to undergo imprisonment for life and to pay a fine of rupees 10,000/- each for the offence under Section 302 read with Section 34 and to under-go rigorous imprisonment for one year and pay a fine of rupees 2000/- each, in respect of offence under Section 201, I.P.C. Seven persons, including the five appellants, were tried by the Sessions Court for offences under Section 302 read with Section 34 and 201 I.P.C. for allegedly murdering one Jit Singh. Case of the prosecution, as unfolded by the evidence led during the trial, is like this. Whether reporters of the local papers may be allowed to see the judgment? 2 A party of pilgrims headed by appellant Joginder Singh alias Kala left a place in District Ferozpur of Punjab on 27-3-2002 for pilgrimage to some places in Himachal Pradesh. Besides the appellants, two other persons namely, Gurnam Singh and Jagtar Singh, who were tried along with the appellants, deceased Jit Singh and a number of ladies and other persons of the area, were the members of the pilgrimage party. The party, it appears, reached Shah Talai to pay obeisance at the Temple of Baba Balak Nath on 30.3.2002. Deceased Jit Singh was brought with the party to cook meals for the members of the Party. On reaching Shah Talai, the party first paid obeisance at the Temple and then camped at a place called Dana Mandi in Shah Talai. Deceased Jit Singh allegedly did not cook the food properly, which annoyed appellant Joginder Singh, the head of the party and other appellants. They gave beating to him. After giving him beating, they tied his hands behind his back with a Parna (a piece of cloth used both as head-gear and towel by the villagers) and took him towards a khud, by a jeep-taxi of PW6 Milak Chand. On the way, appellants Joginder Singh, Surjit Singh, Angrej Singh, Kewal Singh and Gurmukh Singh kept giving fist and kick blows to Jit Singh. Next morning, dead-body of Jit Singh was found in the bed of a rivulet known as ‘Saryali khud’ near Dana Mandi. Some pilgrims, who went to take bath, spotted the dead-body and brought it out and placed it on the dry portion of the rivulet bed. Police was informed telephonically by PW1 Pawan Kumar. A.S.I. Nidhi Singh (PW19) accompanied by some other police officials, rushed to the spot. He made inquiries with the people, present on the spot, about the identity of the dead man but could get no clue. Twenty or twenty-five minutes after Nidhi Singh left the Police Station, three of the appellants, namely, Joginder Singh, Angrej 3 Singh and Kewal Singh and one of the acquitted accused namely, Jagtar Singh went to Police Station, Shah Talai. Vipin Kumar (PW17), M.H.C. was present at the police station, at that time. They told PW17 Vipin Kumar that one of their companions had been missing. Vipin Kumar told them that one dead-body had been spotted in Saryali khud and the police party had already left for that khud and they should go there and see if the dead-body was of their missing companion. The aforesaid three appellants and their accomplice Jagtar Singh then went to Saryali khud. They saw the dead-body but told A.S.I. Nidhi Singh (PW19) in the presence of PW1 Pawan Kumar that it was not of their missing companion Jit Singh. Police conducted inquest and sent the dead-body for post- mortem examination. Following two injuries were found on the dead body by Dr. A.K. Sharma, PW23 : 1. Multiple contusions on both knee and below the knee, reddish brownish scab formed, underline bones are normal. 2. Contusion over the xiphisternum 2 cm x 1 cm reddish brown scab formed, under lying bone normal. Doctor gave the opinion, vide post-mortem report Exhibit PW23/A, that the cause of death was head injury leading to shock. On 1-4-2002, early in the morning, pilgrims party reached their place in Feroezpur District of Punjab. Appellant Joginder Singh alias Kala went to the house of Jit Singh and informed his wife Swaran Kaur (PW2) that her husband had gone missing at the place of Baba Balak Nath and that he had returned, leaving three persons behind to search for her husband and that the information was likely to be received in the 4 evening by 6.00 P.M. However, no information was received. On 4.4.2002, appellants Kewal Singh and Joginder Singh again went to the house of PW2 Swaran Kaur and approached her and her son PW12 Angrej Singh to accept a sum of rupees one lac as compensation. They told them that Jit Singh had died and the compensation was being offered in consideration of their not approaching the Police for any action in the matter. On 14.4.2002, Swaran Kaur accompanied by her brother-in-law Ajit Singh and Gurbachan Singh went to Police Station, Shah Talai and lodged F.I.R. Exhibit-PW2/A. It may be noticed that in the F.I.R., there is no mention of appellants Joginder Singh and Kewal Singh having visited the house of PW3 Swaran Kaur and having told her that her husband was dead and that she should accept a sum of rupees one lac for keeping quite, about the death of her husband and not reporting the matter to the Police. Police showed the photographs of the dead-body to PW2 Swaran Kaur and other persons accompanying her. She identified the photographs to be of her deceased husband. She also identified the clothes and purse which had been removed from the dead-body, to be of her husband. Police then started investigating the matter. It recorded the statement of Milap Chand (PW6) and PW1 Pawan Kumar. Appellant Joginder Singh, while in police custody, made a disclosure statement leading to the discovery of certain belongings, like Parna, blanket, shirt, turban, Tentha etc., of Jit Singh. Articles were identified to be those of the deceased by PW2 Swaran Kaur. Appellant Angrej Singh also made a disclosure statement, while in police custody. His statement led to the discovery of a piece of stone, stained with blood. According to the prosecution, the stone was used to inflict the head injury i.e. injury No.2 which was found on the dead-body. 5 Appellants denied that they had given any beating to the deceased or had carried him to the khud. They also denied having gone to the khud after the dead-body was found and having refused to identify the dead-body to be that of deceased Jit Singh in the presence of PW1 Pawan Kumar and PW19 A.S.I. Nidhi Singh. They stated that they went to the Police Station, Shah Talai to lodge the report that their companion Jit Singh had gone missing and thereafter, they returned to their native place. Trial Court acquitted the two accomplices of the appellants named Gurnam Singh and Jagtar Singh but convicted and sentenced the appellants as aforesaid. We have gone through the evidence and heard the learned counsel for the appellants as also learned Additional Advocate General. Trial Court has held the appellants guilty with the finding that the following circumstances stand established against them and they make a complete chain, leading to one and only one conclusion that it is the appellants who caused the death of Jit Singh and tried to destroy the evidence of commission of their crime:- (a) The appellants did not identify the dead-body of Jit Singh when they were asked if it was the dead-body of their missing person, by PW19 Nidhi Singh, A.S.I. in the presence of PW1 Pawan Kumar; (b) Appellants Joginder Singh and Kewal Singh offered to pay a sum of rupees one lac to PW2 Swaran Kaur widow and PW12 Angrej Singh, the son of the deceased, as consideration for not lodging report with the Police about the death of Jit Singh. 6 (c) Appellants carried the deceased with his hands tied behind his back towards the side, where the dead-body was found, in the taxi of Milap Chand (PW6) and on the way, they were kicking and fisticuffing him. (d) Appellant Joginder Singh made a disclosure statement leading to the discovery of the belongings of the deceased. (e) Appellant Angrej Singh made a disclosure statement leading to the discovery of a stone, which was used as a weapon of offence. On perusal of the evidence, we find that none of the aforesaid five circumstances stand established beyond reasonable doubt, leave alone being proved to the hilt. Evidence led by the prosecution with regard to the first circumstance, viz their conduct in not identifying the dead-body of Jit Singh on 31-3-2002 consists of testimony of PW1 Pawan Kumar, Up- Pradhan of the Panchayat, PW17 Vinin Kumar MHC, PW19 A.S.I. Nidhi Singh and three statements Exhibit PW19/G, PW19/H and PW19/J allegedly made by appellants Joginder Singh, Angrej Singh and Kewal Singh on 31.3.2002 in which they stated that the dead-body was not of their missing companion Jit Singh. Pawan Kumar (PW1) no doubt stated that four of the appellants visited the khud, where the dead-body was lying, on 31.3.2002 and on seeing the dead-body, stated that it was not the dead-body of their missing companion Jit Singh, but his testimony does not inspire confidence. The record shows that the statement of the witness, under Section 161 Cr.P.C. was initially recorded by the Police on 14.4.2002, on the very day of the registration of case. Thereafter, his 7 supplementary statement Exhibit-DA was recorded on 17.4.2002. It is in this supplementary statement, with which he was duly confronted, that it is recorded that the above named three appellants on seeing the dead-body stated that it was not that of deceased Jit Singh. Had this version of PW1 Pawan Kumar been true, it ought to have found mention in his initial statement, which was recorded by the Police on 14.4.2002. Thus the story of the appellants having falsely stated that the dead-body was not of their missing companion Jit Singh as narrated by the witness appears to be an after-thought. PW17 M.H.C. stated that when four of the appellants came to the Police Station Shah Talai and reported that one of their companions was missing, he directed them to go to Saryali khud where the police had already gone, as a dead-body had been found in the bed of that khud. He, however, does not say if appellants did go to that khud or not nor was he in a position to say so, because he himself remained at the Police Station. Nidhi Singh, A.S.I. (PW19) stated that the appellants Joginder Singh, Angrej Singh, Kewal Singh and Jagtar Singh came to the khud and on seeing the dead-body, declared that it was not of their missing companion and that he recorded statements of three appellants to the aforesaid effect which are Exhibits PW19/G, PW19/H and PW19/J. This witness conducted inquest on 31.3.2002 itself. He has stated that he had completed the inquest report after the visit of the four appellants and recording of their aforesaid three statements Exhibit PW19/G, PW19/H and PW19/J. However, we find no mention of the visit of these four persons to the site where the dead-body lay nor do we find any reference to the aforesaid three statements Exhibit PW19/G, PW19/H and PW19/J in the inquest report. 8 The witness was specifically asked during the course of cross-examination by the defense counsel if he had submitted the record of the aforesaid three statements to S.D.M. along with the inquest report. He stated that he had not submitted the record of the said statements to the S.D.M. Now if the statements were in existence on 31.3.2002, as claimed by the witness, he was supposed to have submitted the same to the S.D.M. with the inquest report under Section 174 of the Code of Criminal Procedure or in any case with the application which he made to the S.D.M. for permission to hand over the dead-body to the Panchayat, it having not been claimed by any body. Another reason for our suspecting the genuineness of the three statements is that in one of the statements, i.e. Exhibit PW19/G, date below the signatures of Angrej Singh appellant has been over-written. It appears that initially digit ‘2’ was written for the first digit representing the double digit of the date, but it was changed to ‘3’ by over-writing. From the above discussion, it is clear that the evidence regarding the first circumstance is of suspicious nature and therefore, cannot be believed. The story of the appellants Joginder Singh and Kewal Singh having offered a sum of rupees one lac to PW2 Swaran Kaur and her son PW12 Angrej Singh also does not appear to be true. In fact, it is demonstrated from the evidence on record that the story was introduced later on. According to testimony of PW12 Angrej Singh as also PW2 Swaran Kaur, offer was made on 4.4.2002. F.I.R. was lodged by PW2 Swaran Kaur on 14.4.2002. No explanation has been offered by Swaran Kaur for this long delay of ten days in reporting to the police that her husband had died. Then in the F.I.R. Exhibit PW2/A, which she 9 lodged on 14.4.2002, there is no mention of this story. The story was introduced for the first time by her son PW12 Angrej Singh in his statement, under Section 161 of the Code of Criminal Procedure, which he made on 15.6.2002, e.g. more than two months after the registration of the case. Statements of PW2 Swaran Kaur and PW12 Angrej Singh themselves belie the story of the above named two appellants having offered a sum of rupees one lac for not raking up the matter regarding death of Jit Singh. PW2 Swaran Kaur has stated that 4/5 days after the first visit (first visit was on 1.4.2002) appellant Joginder Singh and all other accused came to her and told that her husband had died at Shah Talai and asked her not to lodge the report with the Police and offered rupees one lac as hush money. However, PW12 Angrej Singh says that they came to know about the death of his father on 10th or 11th April, 2002. If Angrej Singh (PW12) and his mother had come to know about the death of Jit Singh on 10th or 11th April, 2002 as testified by Angrej Singh (PW12) in his cross-examination, the testimony of Swaran Kaur as also Angrej Singh that hush money was offered to them on 4th or 5th April, 2002 for not reporting the matter to the Police, cannot be believed. Thus, the second circumstance also does not stand established. Story testified by PW6 Milap Chand, which has been mentioned herein above as third circumstance, also does not inspire confidence. Milap Chand says that hands of the deceased were tied behind his back and he was being beaten-up by appellants when they and the deceased were traveling by his jeep. In case it was so, he must have lodged report with the Police immediately after dropping the appellants and the deceased at their destination. No doubt, the witness stated that he reported the matter to the Police on 1st or 2nd April, 2002, but the 10 Investigating Officer PW20 Shamsher Singh, S.H.O. says that the witness was examined for the first time on 21.4.2002. The witness testified that the deceased was subjected to kicking and fisticuffing, when being carried towards khud, but PW23 Dr. A.K. Sharma, who conducted the post-mortem examination, did not find any injury caused by fist or kick blows on the dead-body. In fact, there were only two injuries on the dead-body one on the head which according to the prosecution story, was caused by hitting the deceased with a stone and the other on the knees. Thus, the evidence about the third circumstance is also quite doubtful. Both the witnesses of the recovery of the belongings of the deceased at the instance of appellant Joginder Singh, namely, PW3 Balbir Singh and PW4 Karam Singh turned hostile. They did not support the prosecution story. Thus, this circumstance also remains un- proved. In any case, the recovery of the belongings of the deceased from the house of Joginder Singh does not prove the charge framed against the appellants. Admittedly, the deceased was a member of the party of the appellants and when he had gone missing, they were supposed to carry his articles and belongings back with them. Witnesses of recovery of stone also turned hostile. Though PW10 Ashok Kumar and PW11 Parkash Chand stated that appellant Angrej Singh made a disclosure statement, leading to the discovery of stone Exhibit-P11, yet the said stone is not connected with the commission of the crime. There is no evidence, except the opinion evidence of the Doctor PW23 Dr. A.K. Sharma that the injury could have been caused by hitting with a stone. The Doctor admitted in the cross-examination that the injury could have been sustained as a result of fall on some hard surface. 11 In view of the above said position, we are of the considered view that the case against the appellants does not stand established beyond reasonable doubt. Therefore, their appeal is accepted. The judgment of the trial Court convicting and sentencing the appellants as aforesaid, is set-aside and they are acquitted. They being in jail, serving out the sentence awarded by the trial Court, are ordered to be set at liberty, forthwith. ( Surjit Singh ), Judge. (Surinder Singh ), June 18, 2008. Judge. (bm)