IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No. 747 of 1996 Decided on June 24, 2010 ________________________________________ State of H.P. …Appellant Versus Vikram Singh alias Chhunna & Ors. …Respondents Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1No. For the appellant : Mr. Anil Jaswal, Deputy Advocate General. For the respondents : Mr. Sunil Mohan Goel, Advocate. Justice V.K. Sharma,J. (Oral) The State is in appeal against the judgment, dated 12.6.1996, of the learned Additional Sessions Judge (2) Kangra at Dharamshala, H.P. whereby the respondents herein, who shall hereinafter be referred to ‘as the accused’ (denoted as ‘A1’, ‘A2’ and ‘A3’) were tried for the offences under Sections 341 and 302 read with Section 34 of the Indian Penal Code and were ultimately acquitted. 2. In brief, the case of the prosecution as emerges out of the statement of the complainant, PW-6 Shri Prithi Singh, recorded by the police, under Section 154 Cr.P.C. (Ext. PW-6/A) is that he is an agriculturist. On the previous day (12.6.1994) Bakshish Singh alias Happy (in short Bakshish Singh) had told him 1 Whether reporters of the local papers may be allowed to see the judgment? No. 2 that on the next day (13.6.1994) they would go to Dehra in connection with some work. Accordingly, on 13.6.1994, in the morning at about 8.30 a.m., he reached the house of Bakshish Singh at Jachh. After getting ready, the complainant and Bakshish Singh started from there on the scooter of the latter, the former riding as pillion. When they reached Jachh, Chaman Lal, Contractor from whom Bakshish Singh had to take some money, met them. When Bakshish Singh demanded the money from him, he expressed his inability to pay saying that he was not having money with him at that time. However, he took out a 50/- rupees note from his pocket and gave the same to Bakshish Singh and said that he could afford to pay only this much of money at that time. On this Bakshish Singh said that he would have to arrange money from some one else. However, the complainant asked him as to how much money he needed and that he should accompany him to his house from where he could arrange money for him. Accordingly, both of them went to the house of the complainant on the scooter. When they took a turn from ‘Bharmoli Mor’ towards Sutrahar, they noticed that Chhunna (A-1 Vikram Singh alias Chhunna) was sitting at the machine (factory) of Balwant Singh. On reaching the house of the complainant, he took a sum of Rs. 500/- and after staying there for about 15 minutes, while at about 9.30 a.m. they were coming back towards Bharmoli on the scooter being driven by Bakshish Singh and had reached near ‘Bari-Ka-Lahar’, they found that the road ahead was blocked near the ‘Puli’ (culvert) with a tractor parked across the road (“Sarak Par Tedha Tractor Laga Kar”) and A-1 Vikram Singh 3 was sitting on the tractor. As a result, Bakshish Singh stopped the scooter. In the meantime, A-1 Vikram Singh jumped from the tractor and came on the road and said that Happy you cannot escape today and that you should remember your past and future (“Happy Aaj Tu Bach Ke Nahin Ja Sakta Apna Agla Pichhla Dekh Le”). On this, Happy (Bakshish Singh) told him that since he was observing fast on that day on account of Monday, he would not raise his hand and if he wanted to beat him, he could do so. At this juncture, A-1 Vikram Singh abused Bakshish Singh and proclaimed that today he would not let him go. Thereafter, he broke the bottle of beer which he was holding in his hand and as soon as Bakshish Singh retraced his steps, he (A-1 Vikram Singh) hit him with the bottle on the stomach and as a result he (Bakshish Singh) shouted loudly and told the complainant to call his brothers. On this, when the complainant tried to start the scooter, A-1 Vikram Singh proclaimed that he could also not go and when he started the scooter, the other boy who was standing across the hedge, whose name is Rakesh, son of Bashesar, who was wielding a knife in his hand, pounced towards him, but he at once took out the scooter. The complainant further stated that the assailants were accompanied by two other boys out of whom one was having a stick and the other was empty handed, who also with a view to stop him ran after him and hurled stones at him from behind. However, the complainant drove straight to Jachh and narrated the entire incident to Vijay Kumar, brother of Bakshish Singh and he alongwith Vijay Kumar, Subhash, Bishambar and Swaran Singh came back on scooters, when on 4 way Ashok Singh, Bashesar Namberdar, Rania Ram and 2-3 other persons met them who told that Bakshish Singh had been killed. When they reached the spot, the dead body of Bakshish Singh alias Happy (deceased) was lying smeared with blood in the drain by the side of the road. 3. Against the foregoing background, PW-8, Subhash Singh rushed back to Jassur and asked PW-9, Narinder Kumar to inform the police, who gave telephonic information to the Police at P.S, Nurpur at 11.15 a.m. on which DDR No.9, dated 13.6.1994, Ex.PW.15/A was recorded. Thereafter, PW-17, SI Sant Ram alongwith some constables rushed to the spot and reached there at about 1.10 p.m. He recorded the statement Ex. PW-6/A of PW- 6, Prihti Singh (complainant), under section 154 Cr.P.C about the occurrence as narrated above on the basis of which FIR Ex. PW- 15/B was registered at Police Station, Nurpur at 2.05 p.m. 4. PW-17, SI Sant Ram prepared site plan Ex. PW-17/B, took into possession broken pieces of bottle Ex.P14, vide Memo Ex. PW-12/A and blood stained stones, clay, leaves and danda of bamboo Ex.P-13 vide Memo Ex.PW-12/B. He also prepared inquest report Ex.PW-5/D and sent the dead body of the deceased to Zonal Hospital, Dharamshala alongwith a copy of the inquest report for post mortem examination. PW-5, Dr. D.P. Swami conducted autopsy on 14.6.1994 and found the following ante mortem injuries on the dead body:- 1. Lacerated wound on the right side of forehead, 2” x 1/2” above downwards with telling reddish in colour. 5 2. Lacerated wound on the right side of cheek, irregular on the right side of mouth and lips also 2”x 1” x1” reddish with clotted blood. 3. Stab wounds: two in number on the right side mid fore arm outer aspect 1” x ½” x 1” up to bone deep, reddish. 4. Stab wound 5” above the right wrist, outer aspect 1” x ½” x ½” upto muscle and bone deep, reddish. 5. Lacerated wound on the left, lower side of neck 6” above the left mid collar bone, horizontal 3” x ¼” x ¼”, reddish. 6. Stab wounds, two in number on the right side of chest, mid portion in mid axillary line and another in front anterior axillary line. Each 1” x ½” x 1” piercing to right intercosted space and right lung ½” x ½”. Reddish in colour spindle shaped. 7. Stab wounds: Spindle shaped 3 in number on the left side of chest just ¾ left intercostals area in the mid claivicular and anterior axillary line each 1” x ½” x 1½” (L x B x D). It struck upto pericardium and injured left ventricle and right ventricle (two places on left ventricle and one right ventricle) each pierced upto chambers. Clotted blood in track and surrounding about 200 cc. Pericardial sack contains 100 cms of blood. 8. Multiple contusions two in number on the left arm 4” x 1” with reddish parallel lines. 9. Multiple contusions 11 in number, each about 4” x 1” and 5” x 1” on the right side of upper arm (external side) right upper shoulder and parallel lines red in colour with the underline collection of blood which is clotted. All are in different directions and some ends with pealings (less marked impressions) downwards. 10. Stab wound: On the mid upper abdomen 4” x 2” x 4” spindle shaped horizontal ends, just below the xyphoid process. Margins red, large, intestine also cut from side and mid portion slight fickle matter in surrounding. Blood clots were also around cut intestine, portion 100 cc of blood in peritoneum cavity. 11. Stab wounds: 3 in numbers spindle shaped on the right side of mid thigh, outer aspect telling above downwards, reddish size 1½” x ½” x 1” spindle shaped. 6 12. Stab wound: right leg just outer side of right knee joint above downwards 1½” x ½” x 1” reddish. 13. Lacerated wound: on the left outer aspect of mid fore arm, semicircular as shown in diagram beveling on the outer side reddish. 5. A-1 Vikram Singh was arrested on 15.6.1994. While in police custody he made a disclosure statement Ex.PW-11/A on 16.6.1994, on the basis of which one broken bottle of Beer Ex.P4 and his one blood stained Jeans Pant Ex.P12 were recovered by the police from different places on 16.6.1994. A-2 Rakesh Kumar was arrested on 16.6.1994 who also made disclosure statement Ex.PW-10/A on 18.6.1994 leading to the recovery of knife Ex.P11, vide Memo Ex.PW-12/C from ‘Rani Ka Talab’. 6. The clue materials collected by the police during investigation were sent for forensic examination and report Ex.PX was obtained 7. On completion of investigation, the accused were sent up to face trial. On being charged, they did not plead guilty and claimed to be tried. The prosecution evidence followed. It examined as many as 17 witnesses. 8. On close of the prosecution evidence, the accused were examined under Section 313 of Cr.P.C. Their defence is that of denial simpliciter, innocence and false implication. The specific defence raised by A-1 Vikram Singh is as under:- “That on 13.6.1994 at about 8.00. p.m., PWs Subhash, Jai Onkar, Bishambhar and Ilaichi Ram etc. attacked the house of his father and also gave beatings to him. On the same day in the police Station, he was given teeth bite by some-one whose name is not known to him, some one also gave him 7 beatings with sharp edged weapon in the Police station, as a result of which he sustained injuries in the Police Station and not in the occurrence as alleged. He is in police custody since 13.6.1994. PW.8 Subhash fought elections against his father twice and therefore, said Subhash nourishes enmity with his father. PW.11 Jai Onkar contested elections twice with his uncle Sh. Baldev Singh Pathania. Accused Rakesh Kumar, present in the Court is related to him.” 9. A-2 Rakesh Kumar denied that he was arrested on 16.6.1994. According to him, he was arrested on 13.6.1994. Similarly, A-3 Brij Bhushan also stated that he was not arrested on 20.6.1994 and was in fact arrested on 17.6.1994. 10. In defence the accused examined one witness, namely, DW-1 Ramesh Kumar, Criminal Ahlmad to the Court of Judicial Magistrate 1st Class, Court No. II, Nurpur, to show that copy of F.I.R Ex.PW-15/B, dated 13.6.1994, was received in the said Court on that day at 3.55 PM. They have also brought on record report Ex.PA dated 14.7.1994 of the Director, Finger Prints Bureau, Phillaur, which though was submitted with the challan, but was not tendered in evidence. 11. On conclusion of the trial, the accused were acquitted by the learned Trial Court as already noticed. 12. We have heard the learned Deputy Advocate General for the appellant-State and the learned counsel for the respondents-accused and have perused the record. 13. The learned trial Court has acquitted the accused primarily on the grounds that there is variance between the ocular 8 version about the occurrence as stated by the sole eye witness, PW-6, Prithi Singh and the medical evidence as deposed by PW.5, Dr. D.P. Swami, which goes to the very root of the case, besides causing serious doubt on the very genesis of the prosecution case and the manner, in which the case was investigated by the police further casts a grave doubt on the very veracity of the prosecution story. 14. The relevant portion of the testimony of PW-6, Prithi Singh, about the initiation of the occurrence is to the effect that when they were returning from village Sutrahar on the scooter and had reached at ‘Bari Ka Lahar’ at about 9.00 a.m. the road was blocked with a tractor. They noticed that A-1 Vikram Singh had blocked the road with his tractor. Accordingly, they had to stop the scooter. A-1 Vikram Singh was noticed seated on the tractor and A-2 Rakesh, who was having a knife, was standing at some distance across the hedge. A-3 Brij Bhushan was also standing nearby holding a stick. There was another person whom PW-6, Prithi Singh could not recognize. In the mean time, A-1 Vikram Singh got down from the tractor and proclaimed that the deceased could not go alive from the spot scene. On this, the deceased requested A-1 Vikram Singh that since he was observing fast on that day on account of Monday, he could not use force and that he be allowed to go. Thereafter, A-1 Vikram Singh took out an empty bottle of beer from the tractor, broke it and attacked the deceased with the same and caused injuries to him on the stomach region. At this stage, the deceased asked PW-6, Prithi Singh, to go and call his brothers. When he tried to go from the 9 spot, A-2 Rakesh tried to snatch the keys of the scooter from him, but he somehow managed to take away the scooter. Thereafter, the accused persons pelted stones at him from behind. 15. In view of above, it is evident that according to PW-6, Prithi Singh, the deceased was attacked by A-1 Vikram Singh with the broken bottle of beer on his stomach region. As per the testimony of PW.6 Prithi Singh, he had to go away from the spot scene, soon after the alleged occurrence had just started and thus he could not be expected to say about the author and the manner of the stab wounds suffered by the deceased. However, his deposition is quite categoric that the first blow was given to the deceased by A-1 Vikram Singh with the broken bottle of beer on the stomach region, but, injuries No. 1, 2, 5 and 13, which are opined by the medical witness PW-5 Dr. D.P. Swami, to have been caused by broken bottle of beer, Ex.P4, are on other parts of the body, such as right side of forehead, right side of cheek, right side of mouth and lips and left side of neck and on the left outer aspect of mid fore-arm. Apart from it, the stab wounds found on the dead body of the deceased, though stated by PW-5, Dr. D.P. Swami, to have been caused with a knife, yet he has denied that these injuries could be caused by knife, Ex.P11, for the reason that the knife is single edged weapon and injuries No. 3, 4, 6, 7, 10, 11 and 12 could be suffered by a weapon which should be double edged weapon. These aspects of the matter cannot be lightly over-ruled. 16. Though we are very much conscious of the settled legal position that in case of conflict between the ocular and 10 medical evidence, ordinarily the ocular version shall take precedence over medical evidence, yet taking into consideration the peculiar facts and circumstances of the present case, and on an overall view of the matter and the pronouncements rendered by the Hon’ble Supreme Court, it shall not be safe to give credence to the ocular version in the face of categorical medical opinion given by PW-5, Dr. D.P. Swami as noticed hereinabove. 17. The Hon’ble Apex Court has laid down the following preposition of law with regard to conflict between the ocular and the medical evidence vide relevant portion of para 9 of the judgment reported as Shri Mani Ram and others Versus The State of Uttar Pradesh, All India Criminal Law Reporter, 1994(2) 659: “This statement clearly goes to show that the deceased was fired at from behind when he was running and the appellants Mani Ram and Agya Ram were chasing him. That being so the bullet or pallet injuries should have been caused on his back or at least somewhere behind his shoulder but as stated earlier according to the medical evidence and the post mortem report injury No.7 was caused by a fire-arm. A perusal of injury No.7 will distinctly go to show that there were multiple gun shot wounds on a area 17 x 13 cms right shoulder and front of upper arm and outer part but there was no injury either on the back or anywhere behind the shoulder. There is no other gun shot injury except injury No.7. Neither the doctor who first examined the injured Basdeo nor the doctor who performed the post mortem found any injury on the back or back portion of the shoulder to lend support to the evidence of the sole eye witness 11 Prabhoo Nath. It is well settled by long series of decisions of this court that where the direct evidence is not supported by the expert evidence then the evidence is wanting in the most material part of the prosecution case and, therefore, it would be difficult to convict the accused on the basis of such evidence. If the evidence of the prosecution witnesses is totally inconsistent with the medical evidence this is a most fundamental defect in the prosecution case and unless this inconsistency is reasonably explained it is sufficient not only to discredit the evidence but the entire case. In the present case as noticed above the evidence of the solitary witness Prabhoo Nath is wholly inconsistent with the medical evidence and, therefore, it would not be safe to base the conviction on the solitary evidence of such a witness. There is no other evidence to support the prosecution case. Consequently, the conviction of the appellants deserve to be set aside”. 18. To the similar effect is the law laid down in the Apex Judgments reported as Mahendra Singh v. State of Rajasthan, 1989 CRI. L.J, 886 and Mohar Singh and others etc. v. State of Punjab, 1981 CRI.L.J. 998 . 19. Admittedly, there were following injuries on the person of A-1 Vikram Singh at the time of his arrest as observed by PW-4, Dr. Vijay Kumar, SMO Civil Hospital, Nurpur:- 1. There was a single abrasion of size 4 cm x 3 cm on the left chest in the mix axillary line with clear teeth marks four of upper on upper margin and 3 on lower margin. The area was reddish in colour, brownish scab was forming there was evidence of pus formation. 12 2. There were multiple abrasions on the left scapular region and infra scapular region of sized ranging from 12 cms x 2.5 cms, 8 cm x 1 cm, 9 cm x 1.5 cms and 6 cm x 4 cm. The epidemis was pealed off and brownish scab was forming. 3. There was a single abrasion of size 6 cm x 1.5 cm on the left upper arm in its lower 1/3rd the margins were red with healthy area in between. 4. There was a single lacerated wound of size 0.7 cm x 0.3 cm on the right lateral little finger in the middle of middle phalanx. It was reddish in colour, brownish scab was forming. 5. There was a single sharply cut wound of size 0.8 cm x 0.2 cm on the grease of right first inter phalanygeal joint on the antero lateral surface. Pus formation was present. 20. However, the prosecution has not offered any explanation in this regard in derogation to the legal position as enunciated by the Hon’ble Supreme Court in Babu Ram and Others versus State of Punjab, (2008) 2 Supreme Court Cases (Cri) 727. 21. The manner in which investigation has been conducted in this case leaves much to be desired. One of the instances, which can be safely stated in this regard is that whereas, PW-6, Prithi Singh, has categorically admitted during cross-examination (at Page 16 of his statement) that “When we reached on the spot there were piece of only one bottle at the site of the event. The police had picked up the glass splinters. There was blood at the site of the crime. Ex.P4 was lying at the spot and was blood stained.” However, as per prosecution, 13 broken bottle of beer, Ex.P4, was taken into possession from near the place of occurrence on 16.6.1994, vide recovery Memo, Ex.PW-5/B, pursuant to the disclosure statement made by A-1 Vikram Singh under Section 27 of the Indian Evidence Act, Ex. PW-11/A, on the same day, i.e., 16.6.1994. This aspect of the matter again casts a very serious doubt on the veracity of the prosecution case. In case broken bottle of beer had already been taken into possession by the police from the spot on the day of occurrence itself, i.e., 13.6.1994, there was no occasion for A-1 Vikram Singh to have made any disclosure statement leading to its recovery after three days, i.e., on 16.6.1994. Furthermore, out of the two witnesses to disclosure statement, Ex.PW-11/A, one is police constable Ramesh Chand No. 712 of Police Station Nurpur, the very Police Station within the jurisdiction of which the alleged crime had taken place and was investigated by PW-17, SI Sant Ram, of the same Police Station. The other PW-11, Jai Onkar, has been proved to be a highly interested witness favourably inclined towards the complainant party and inimically disposed of against A-1 Vikram Singh. Admittedly, no independent witness from the place of recovery was joined at the time of the alleged recovery of broken bottle of beer Ex.P-4 vide Memo, Ex. PW-8/B. 22. The learned trial Court has adverted to numerous other aspects in which the investigation was conducted in this case. But we need not to go into all these in detail. Suffice it to say that though it is alleged that the road was blocked by A-1 Vikram Singh by his tractor for more than half an hour, which 14 could have caused some hindrance to the on going traffic, yet no other witness was joined by the police except PW-6, Prithi Singh, albeit the fact that some other persons namely Ashok Singh, Bishambher and Rania Ram and 2-3 other persons had already observed the dead body of the deceased lying on the spot and they had brought this fact to the notice of PW-6 Prithi Raj, as disclosed by him in his statement, Ex. PW-6/A, recorded by the police under Section 154 of Cr.P.C. 23. On appraisal of the evidence led by the prosecution during the trial and the reasoning adopted by the learned Trial Court not to rely upon the same, we are satisfied that it shall not be safe to disturb the findings given by the learned Trial Court vide its judgment dated 12.6.1996, acquitting the accused by extending benefit of doubt in their favour. Accordingly, the appeal is dismissed. (R.B. Misra), Judge. June 24, 2010 (V.K. Sharma) (cr) Judge. 15