IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 332 of 1995. Date of Decision: 22.5.2008 ____________________________________________________________ State of H.P. Appellant. Versus Kuldip Singh @ Pappu and others. Respondents. Coram Hon’ble Mr. Justice Surjit Singh, J. Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant : Shri P.K. Sharma, Addl. Advocate General. For the respondents : Sh. Rajiv Jiwan, Advocate. _________________________________________________________ Surjit Singh, J. (oral). State is aggrieved by the judgment of Sessions Court, whereby the respondents, on having been tried for offence under Section 302 read with Section 34, I.P.C., stand acquitted. So it (the State) has filed the present appeal challenging the judgment of the Sessions Judge. Prosecution version, as is made out from the evidence led during the trial, may be summed up thus. Deceased Raj Kumar and the respondents were members of the marriage party of one Surinder son of Shri Dharam Singh of village Bangana. The marriage party left Bangana for bride’s village Mahu–da-Panga on 26-1-1992. The party returned with the bride on the next following day, i.e, 27-1-1992. Deceased Raj Kumar did not return with the members of the marriage party. His father Udho Ram (PW2) enquired from Dharam Singh, the father of the bridegroom, as to why his Whether reporters of the Local papers are allowed to see the judgment? - 2 - son (deceased Raj Kumar) had not returned. Dharam Singh told him that he had stayed back at Amb. Udho Ram (PW2) then sent his another son, named Tilak Raj (PW5) to Amb to look for deceased Raj Kumar. Tilak Raj could not find Raj Kumar at Amb. He informed his father telephonically. His father then himself went to Amb after some time. That very day, Udho Ram (PW2) lodged a report with the Police that Raj Kumar had gone to attend the marriage of Surinder Singh son of Dharam Singh of village Bangana but he had not returned with the Barat and was missing. Police party accompanied by Udho Ram (PW2) and other persons of the area then started search for Raj Kumar. On the night intervening 28th and 29th January, 1992, dead-body of Raj Kumar was found in a ‘choe’ (rivulet) on loose earth near village Mahu-da-Panga. A case was registered under Section 302 of the Indian Penal Code. Inquest was conducted. Several injuries, including a head injury from which brain matter was leaking, were there on the dead body. The dead body was sent to the District Hospital at Una where Dr. Vijay Raizada conducted the post mortem examination and noticed the following ante mortem external injuries : “ a) A lacerated wound 10 cm x 4 cm over left side of the face extending from nose towards left cheek, reddish brown with margin detected, mild haemorrhage exudation was seen. b) The tip of the nose alongwith 2cm portion of the nose hanging with a bag of skin, nasal bone and cartilage was absent in lower part and in upper portion of the nose, nasal bone and cartilage seen. c) Fracture line 4cm long seen over left maxilla and oval shaped abrasion over the right knee reddish brown, abrasion over the front of - 3 - manubrium sterni with multiple injuries on the left side of the chest. d) There was a chip fracture of frontal bone in the middle and a fracture like extending over 4cm long, reddish brown in colour, the brain matter was seen coming out of the chip fracture, epidural haematoma seen. Fracture line seen over the bone of the skull.” He conducted the post mortem examination on 30-3-1992 and gave the opinion that death had taken place between twenty four to forty eight hours, prior to the conduct of the post-mortem examination and that the death had taken place almost instantaneously with infliction of the injuries. As per this opinion, the date of death works out to be 28th January, 1992. Udho Ram was not satisfied with the post-mortem report of Dr. Vijay Raizada (PW1). He asked for second post-mortem examination. Dead body was taken to P.G.I. Chandigarh where Dr. Inderjit Dewan (PW4) conducted the post mortem examination and noticed the following injuries: (i) A stitched scalp incision on front of forehead was present, which started 3 cm lateral and 2.5 cm above the outer end of left eyebrow, across the forehead 1-4 cm lateral and 3 cm above the outer end of right eyebrow. The incision was stitched and was bearing contused and abraded area above the below, particularly in the middle of forehead. Because of this incision, the dimensions of the original injury on the forehead could not be made out properly. After removal of stitches, extensive intraaponeurotic effusion of blood could be seen under both flaps, about the middle 15x12 cm. Under the lower flap, there was comminuted fracture involving the nasal part and adjacent parts of supra- orbital margins and extended on to the anterior fossa of skull where it involved both orbital places, - 4 - on the left side it extended to middle fossa. Under the upper flap the fracture extended on to the squama of frontal bone. The fracture was depressed and was arrow shaped, antero-posterior measurement was 8 cm and side to side was 9 cm. Another vertical fracture extended from the inner side of right supraorbital margin upwards towards the bregma. Under the fracture the dura was intact but frontal lobes of cerebrum were lacerated. Basal surface of both frontal lobes showed a laceration 4 x 2 cm, this laceration extended on to the fronto- supero-lateral surfaces of both lobes in an area 3- 2x2x1.5 cm. On supero-lateral surface of left frontal lobe, in continuation of laceration, there was an area of subarchnoid hemorrhage 3x2 cm. Weight of the brain was 1355 gm, and was oedematous, Tonsils and unci were grooved. ii) An irregular lacerated wound 12x4x1/2 cm on front of face. It started 4 cm anterior to the lobule of left pinna extended across the left cheek, the base of the cartilage nous part of nose, across the right cheek to reach a point 3 cm above the outer angle of mouth on right side. The alae and cartilaginous septum were separated but remained attached to their bases by a couple of skin tags. The anterior surface of the left maxilla was exposed and was bearing a fracture which was curved 2x1/8 cm and extended deep into the antrum. iii) On the right side of neck there were five small abrasions 5x5 mm, 1x1 mm, 4x2 mm, 1x1 mm. These abrasions were postmortem and not antemortem and had been caused by pealing off of the skin due to decomposition, margins were like those of post-mortem blisters. These were not nails marks. There was no ligature mark on the neck. On - 5 - dissection, the neck there was neither any effusion of blood nor any fracture of laryngeal cartilages or hyoid bone. Two reddish marks one 1x1 cm and another 2x2 cm over which 5 small abrasions described above were present on right side of neck were due to post-mortem changes. Such marks were also seen at other parts of body. A punctured wound 1x4 cm from which a thorn was pulled out was also seen about the middle of anterior border of sternocleido mastoid of left side. iv) A slightly oblique reddish blue contusion 8x1.5 cm located on the left anterior side of upper part of chest was present. It started 7 cm below suprasternal notch and 5 cm left of mid-line. It reached the junction anterior fold of axilla with the chest. On incising it, extravasated blood clots were seen. This was ante-mortem. v) A similar reddish blue contusion, oblique 6x1.5 cm just above injury No.4 was present. It started 1 cm above the inner end of injury No.4 and extended obliquely upwards and to left to reach the middle of left clavicle. This injury was also ante-mortem. vi) An irregular abrasion 2x1 cm on right side just below clavicle, above the middle was present. vii) A triangular abrasion 9x4 cm on left side of upper part of chest, 1 cm from mid-line located below inner end of left clavicle on manubrium was present. viii) An abrasion 4x2 cm on front of right knee was present. ix) An oblique abrasion 2x1 cm on right shin 8 cm below patella was present. - 6 - x) Three small abrasions 1/2x1/2, 1/2x1/4, 1/4x1/4 cm on upper part of left shin was present. xi) A transverse lacerated wound 11/4 cm with blood on its base on front of distal interphalangeal joint of middle finger of right side was present.” All the injuries, except injury No (iii) above, were opined to be ante-mortem. Injuries No. (i) and (ii) were opined to have been caused with some heavy blunt weapon and injuries No. (iv) and (v) with an object like a Lathi. He also opined that the death appeared to have taken place immediately after the infliction of the injuries and the time-gap between the death and the post-mortem examination conducted by him was one week. He conducted the post-mortem examination on 3-2-1992. Worked out on the basis of opinion, the date of death comes to 27th or 28th January, 1992. Police recorded the statements of two witnesses, namely, Rajesh Kumar (PW6) and Ajit Kumar (PW7). Ajit Kumar (PW7) told them that they had seen the three respondents fisting and kicking the deceased when the marriage party was proceeding to the venue of dinner from the place where it had been lodged and they also saw the respondents throwing deceased Raj Kumar into ‘choe’ from a height of about thirty to thirty-five feet. Police got the statements of these two witnesses recorded under Section 164, Cr. P.C. Trial Court has dis-believed the prosecution version, including the testimony of the above named two witnesses and acquitted the respondents. It has been argued on behalf of the State (appellant) that the testimony of PW6 Rajesh Kumar and PW7 Ajit Kumar proves the charge against the respondents beyond reasonable doubt and the trial Court was not justified in dis-believing their testimony and - 7 - ordering the acquittal of the respondents. We have considered the aforesaid submission in the light of the evidence on record. Incident had taken place on 26-1-1992 according to the prosecution version. Medico legal evidence in the form of testimony of PW1 Dr. Vijay Raizada and PW4 Dr. Inderjit Dewan suggests that the death had taken place on 27th or 28th January, 1992. Again, according to the prosecution story as also the ocular version of Rajesh Kumar (PW6) and Ajit Kumar (PW7), the deceased was given fist and kick blows and then thrown into the choe but the Doctors have stated that the injuries could not have been sustained due to kicks and fist blows nor by throwing or fall from a height of thirty to thirty-five feet on loose soil but some heavy blunt weapon had been used to cause atleast two of the injuries and a weapon like a Lathi could have caused two of the other injuries. Both the witnesses on whose testimony the State places reliance to seek conviction of the respondents turned hostile. Prosecution cross-examined them with the leave of the Court. PW6 Rajesh Kumar in his cross-examination by the prosecutor did not say that any occurrence had taken place in his presence, though on being confronted with his statement under Section 164 of the Code of Criminal Procedure, he did state that he made the specific portions of the said statement, with which he was confronted. His saying that he stated certain specific portions of the statement Exhibit-PK to the Magistrate does not prove that he witnessed the facts appearing in those portions, because neither he testified those facts in the Court during the trial nor did he state that what he stated in the aforesaid specific portions of the statement Exhibit-PK was correct. Therefore, his testimony is of no use to the appellant. - 8 - Ajit Kumar (PW7) when cross-examined by the Prosecution stated that he saw the three respondents fisticuffing and kicking the deceased and then throwing him into the choe from the height of thirty to thirty-five feet. This statement of PW7 cannot be believed, leave alone being made the basis for conviction of the respondents for a number of reasons. The witness in his cross-examination by the defense counsel admitted that he had been detained by the Police as a suspect and was beaten up mercilessly before he made the statement Exhibit-PM before the Magistrate. Another reason for not believing the testimony of the witness is that the incident had taken place on 26-1-1992 but the Police recorded his statement under Section 161 of the Code of Criminal Procedure, for the first time on 3-3-1992 and produced him before the Magistrate for recording his statement, under Section 164, Cr.P.C. on 6-3-1992, or say more than a month after the occurrence. No plausible explanation has been put- forth by the witness why he did not disclose the alleged occurrence to the Police or to any body else immediately after it (occurrence) took place. Yet another reason for not relying upon the testimony of the witness is the fact that the medico legal evidence is not in conformity with the facts testified by him. According to him, deceased was dealt kicks and fist blows and then thrown into the choe but the Doctors say that the injuries which proved fatal could have been caused by means of a heavy blunt weapon and a lathi like object. The Doctors have ruled out the possibility of the injuries, including the head injury, which caused leakage of brain matter, due to fall or throwing from height of thirty to thirty-five feet, because the site where the dead-body allegedly landed, was in the form of loose soil. Further, the witness stated that he saw the occurrence from a distance of thirty five feet. At the same time he has stated that it was - 9 - pitch dark as it was night time and also it was cloudy and raining. It could not have been possible for him to witness the occurrence from such a distance, when it was so dark. For the fore-going reasons, we see no merit in this appeal. The same is therefore dismissed. (Surjit Singh) Judge. (Surinder Singh) Judge. May 22, 2008. (bm)