1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.45 of 1997. Judgment reserved on:02.06.2010. Decided on : November 22, 2010. State of H.P. ...........Appellant. VERSUS Baldev Singh ....….Respondent. Coram The Hon’ble Mr.Justice R.B.Misra, Judge. The Hon’ble Mr.Justice V.K.Sharma, Judge. Whether approved for reporting?1 Yes. For the Appellant: Mr.Rajinder Dogra, Addl. A.G. with Mr.Vikas Rathore, Dy.A.G. For the respondent: Mr.Baldev Singh, Sr.Advocate with Mr.Sudhir Sharma,Mr.PawanGautam, Mr.A.K.Dhiman and Mr.Arun Kumar,Advocates. R.B.Misra, Judge: The present criminal appeal has come up for consideration after the leave to appeal has been granted under Section 378(3) of the Code of Criminal Procedure in reference to the judgment dated 22.7.1996, passed in Sessions Trial No.7-NS/7 of 1993 by learned Additional Sessions Judge, 1 Whether the reporters of the local papers maybe allowed to see the judgment? 2 Solan, acquitting the accused for offence under Sections 302 and 201 of the Indian Penal Code. 2. F.I.R. Ext.PW-24/A was recorded on the information of Kamal Dutt (PW-1) indicating that on 21.6.1991 at about 8 p.m. after coming at his home from marriage party, he heard cries from the National Highway road at the same time Johri Ram (PW-3) also called him to come to the road side, when he hardly had covered half of the distance, heard sound of starting of a motor cycle, which proceeded towards Kandaghat side. On reaching the spot, cries of somebody was noticed from 10 feet below the road. In the meantime, Ganesh Dutt also arrived there, where (PW-3) Johri Ram revealed that some one after killing some one has escaped driving a red motor cycle bearing No.PCI-396 and that person was Sikh gentleman bearing pink coloured turban. PW-1 came to the national highway and requested one truck driver for taking him to Kandaghat, but he declined as his truck was loaded with sand. In the meantime, PW-11, Subhash Sharma, came there, was asked to inform the Kandaghat police on telephone, who accordingly informed the police. Tara Dutt, Dharam Dutt and Parkash 3 Chand etc. also reached at the spot thereafter and kept waiting near the dead body till the arrival of police. The informant (PW-1) also revealed that the girl about 22/24 years, wearing red suit, was lying on the ground chest down with her body smeared with blood. 3. Constable Rajinder Kumar registered F.I.R.No.52/91 in reference to the message from PW-11 Subhash Sharma. 4. The accused was apprehended, blood stained earth and stones were recovered vide memo.Ex. PW-1/B, grass vide memo. Ex. PW-1/C. Kirpan Ex.P-3 lying near the dead body was also taken into possession vide recovery memo., Ex.PW-1/D. Similarly, 2 pieces of broken glass of wrist watch stained with blood, cover of Kirpan Ex.P-5 were also taken into possession vide recovery memos Ex.PW-1/A and Ex. PW-1/G respectively. Sketch of Kirpan Ex.PW-1/E and site plan Ex.PW-25/C was prepared and the dead body was photographed through PW-4 Sh.Satish Sharda. 5. The charge was framed for the offence under Section 302/201 IPC and the case was committed to the Sessions trial. In order to prove its case, the prosecution examined 4 as many as 25 witnesses. PW.1 Kamla Dutt, PW-3 Johri Ram and PW-10 Ganesh Dutt are alleged eye witnesses of the occurrence, whereas, PW-2 Ram Swaroop is formal witness in whose presence the jama-talasi of accused was allegedly conducted. PW-4 Satish Sharda, took photographs Ext.P-10 to Ext.P-22. PW-5, Jasvinder Singh being owner of scooter (motor-cycle PCI-396) is formal witness. PW-6, Sarojani Gill, Superintendent of Nari Niketan, PW-7 R.P.Kaushal Tehsildar, Joginder Paul Patwari, PW-9 Sh. Nand Lal father of deceased are formal witnesses of link evidence. PW-11 Subhash Sharma is informant in this case. PW-12 Amba Dutt, PW-17 S.I. Prem Chand, PW-18 Garib Dass, PW-20 Brahm Prakash, PW-24 SI Duni Chand, and PW-25 Khub Ram are investigating officers in this case. PW-23, Dr.S.K.Dhiman, conducted post-mortem of the dead body of female and also medically examined the accused. 6. The accused through his statement under Section 313 Cr.P.C. while denying the prosecution case has stated that on 21.6.1991 he attended the court work from 10 a.m. to 5 p.m. and thereafter he boarded 5 the bus from Panchkulla to Shimla and at about 12-15 mid night when the bus reached at Kandaghat, he was forced to get down from the bus on the pretext of being a terrorist from Punjab, however, when he disclosed his identity that he is Stenographer in a Court at Chandigrh, the investigating officer conducted verification and falsely implicated him in a case. 7. PW-23, Dr.S.K.Dhiman, conducted the post- mortem examination of the victim (Sunita) on 22.6.1991, giving examination report with opinion as below:- (a) stab wound on left side of chest wall on post auxiliary line along inter costal space 4 cms x 1 entering chest cavity between 7th and 8th rib. (b) Stab wound on left side of chest wall on posterior auxiliary line along inter costal space 4 cms x 1 cm entering cavity between 8th and 9th ribs. A) Wound of left side of chest wall has entered the plural cavity and has cut left long on lateral side in lower love for about 3 cms. x 1 cm x 4 cms. Left cavity full of blood. B) Wound of left side has entered lower part of left plural cavity, punctured diaphragm and punctured the spleen in post superior part entering its substance in to half of its thickness. Scalp Insized wound on left occiput in interior posterior direction 3 cms. Scalp deep into half cms. in entire bone of skull has been exposed. Chest: 6 Front (A) stab wound in 2nd intercostals space 2 cms. right to sternal border along line of intercostals space. It is 3 cms x ½ cm. going in chest cavity. Incised: b) Wound 2 cms x 1 cm x .5 cms. in front of sternum at level of 3rd costal cartilages. c) Incosed wound 2 cms. x .5 cm into skin deep on left side of chest 3 cms left to left sternal border on 4th rib. d) Stab wound 3 cms x ½ cm x 4 cms. deep on left breast going towards lateral side. 8. Accused Baldev Singh was also examined on 22.6.1991 as follows:- “Incised wound on middle 1/3 of left fore arm lateral side transfers below upwards 4 cms x 1 cm x 6 ½ freshly bleeding, arms is swollen in middle 1/3, on the inner side there is a size wound about 1 cm x 1 ml.ltr. 2) lacerated wound on lower third of right fore arm on medial part 1 cm x ½ cm x 1 cm freshly bleeding. 3) Bruise on lateral side on right thigh in upper 1/3 transverse 4 cms x 1“ red in colour. Breath is smelling of alcohol indicating the person has consumed alcohol but not intoxicated. He had taken two X- rays of the arm and there has been no fracture seen. On examination of wound No.1 under local anesthesia probe enter the wound indicating to the through and through wound.” 9. PW-23, Dr.S.K.Dhiman, in his cross examination has stated that there were no dragging marks on the body of deceased when he conducted post mortem examination and 7 there was no abrasion, contusion or laceration on the body of deceased. PW-23 admits that if a person thrown from a height from 20 to 25 feet and if he falls on hard surface and bushes then lacerations, contusions and abrasions are all to be present on the dead body. The stab wound is caused by sharp pointed weapon and incised wound is caused by sharp edged weapon. These two wounds are different kinds of nature and the possibility of both the injuries i.e. two different kinds of wounds on the deceased were with two different weapons. PW-23 has also stated in his cross examination that the accused was brought to him at 1 AM on 22.6.1991 and after examining the accused, he was permitted to go and again accused Baldev Singh brought before PW-23, who examined the accused again and was kept in the hospital till 10 AM (morning). PW-23 in his cross examination has further stated that he had not taken the clothes of the accused into his possession when he was medically examined on both the occasions after being produced before him by the police. PW-23 in his cross examination has further stated that the word recent, 8 written on the MLC Ext.PW-23/D denotes the injuries to the person Baldev Singh accused was of the duration of maximum one hour. Injuries on the person of the accused may be a result of fall and could also be possible by blow of dandas. 10. PW-1, Kamla Dutt, in his endeavour to support the prosecution case has stated that Johri Ram (PW-3) told him that someone had killed a person and has left the place on motorcycle and further told that the person was a Sikh gentleman wearing pink colour turban, on a red motorcycle No.PCI-396. On the inquiry by PW-1, as to whom was the person crying below the road, nobody replied. The National Highway was about 25 feet from this place where they found a truck loaded with sand. The request to the driver of the truck to help for carrying that person to Kandaghat was declined as the truck was loaded with sand. When they tried to go towards Waknaghat on foot, a person, namely, Subhash came there on a motorcycle or scooter, was asked to inform Kandaghat police telephonically. Police came there at about 11 p.m. or 12 p.m. midnight. Police saw the spot and recorded his statement which is Ext.PW-1/A 9 which was signed by him. Police saw blood stains on the road and marks of dragging from the link road towards the national highway and also upto the place where the dead body was lying. Police took into possession blood stain earth and stone from the road and put the same in a Pullinda and sealed it. The police also took into possession blood stained grass, leaves and blood stained stones from the place where the dead body was found lying. One chura lying near the dead body was also taken into possession. Two pieces of wrist watch glass were also taken into possession. The cover of chura was also taken into possession. One pink coloured turban, one blood stained shirt and one pant were taken into possession from one sikh gentleman who was already present in the police station at that time. The rexin seat cover of the motorcycle stained with blood was also taken into possession. Recovery memos Ext. PW-1/H and Ext. PW.1/J were prepared which are signed by said sikh gentleman. 11. In cross examination, PW-1 has stated that police saw the dead body at about 10.30 PM and the dead body was removed to Kandaghat 10 in a truck at about 5 AM and taken directly to the hospital and Kula Nand accompanied the police in the truck. Johri Ram and Ganesh Dutt did not accompany them in the truck. PW-1 and Kula Nand reached in the hospital after about 10 – 15 minutes and reached the police station at about 6 AM. At about 8 or 8.30 AM they came back from the Police Station. The police had disclosed the name of the accused Baldev Singh at 6 AM while he was present in the Police Station. PW-1 in his cross examination has further stated that at about 7.45 PM when Subhash Chand met them on the National Highway, they did not go to that person, to provide any aid or to ascertain whether that person was alive or dead. Within 15 – 20 minutes, about 15 persons assembled there. PW-1 in his cross examination has further stated that he had disclosed to the police that he had asked Subhash to inform the police over the telephone from Kandaghat that a Sikh gentleman wearing pink turban with read motorcycle bearing No.PCI_396 has escaped after killing someone. 12. PW-2, Ram Swaroop, while assisting the investigation, has stated that on search of 11 Baldev Singh accused a sum of about 200/-, one wrist watch without its glass were taken into possession by the police vide memo Ext.PW-2/A. 13. PW-3 Johri Ram has stated that while coming from Waknaghat to his house, when he reached Hatri Mod, he heard cries. At that time Ganesh Dutt was also with him. PW-3, along with Ganesh Dutt, raised voice for calling people and also gave call to Kamla Dutt (PW-1), whose house was at a distance of about 100 – 150 meters from that place. PW-3 saw that two persons were fighting with each other on the link road, Hatri to Wakna below the National Highway, out of whom one was lady and one Sikh gentleman. The Sikh gentleman threw the lady below the road and ran away from that place on the motorcycle towards Kandaghat. The Sikh gentleman was wearing pink colour turban and two coloured shirt of white and black and the motorcycle was of red colour bearing No.396. When they reached near the place of occurrence on the link road, they saw a lady lying on the ground with her abdomen on the ground and she was crying. PW-1 and Ganesh Dutt enquired from her but she did not reply. PW-1 then sent Subhash 12 to inform the police over the phone and PW-3 remained there for about an hour also and thereafter returned to his house. In cross examination, PW-3 deposed that his statement was recorded in the Police Station. PW-3 had informed about the incident to Kamla Dutt (PW-1) who had come to the spot, however (PW-1) had not seen the face of that person who left on the motorcycle with speed. PW-3, in his cross examination, has further stated that he and Ganesh Dutt heard the cries from a distance of 20 meters and they did not try to give first aid to the lady nor tried to take her to the hospital for medical aid and stayed there for one hour. The motorcycle crossed at a distance of 15 feet from the place where they were standing and at that time the Sun had set but there was no darkness. PW-3 and Ganesh Dutt had read the number of the motorcycle in the light of a vehicle which was coming from behind. Ganesh Dutt is brother-in-law (Wife’s sister’s husband). PW-3 has stated in his cross examination, that he had stated to the police that he had seen one Sikh gentleman and one lady fighting with each other and has also stated that the Sikh 13 gentleman had thrown the lady below the road. PW-4, Satish Sharda, took the photographs of the dead body. 14. PW-5, Jasvinder Singh, has stated that he was associated by the police and got released his motorcycle Hero Honda No.PCI-396 from the Court at Solan vide Supurdarinama Ext.PW4/A. Jaswant Singh had taken his motorcycle for attending some private work on 21.6.1991. In cross examination, PW-5 has stated that he did not know accused Baldev Singh, however, has stated that his motorcycle was stolen in the year 1991 by someone and after recovery was released to him by a Court at Chandigarh. PW-5 has denied that Baldev Singh accused had helped him in releasing the motorcycle and has also denied that the accused had taken his motorcycle in the month of May 1991 and thereafter returned the same. It has also been denied that on 21.6.1991 accused Baldev Singh came to PW-5 and requested to give his motorcycle to him as he had some urgent work to do. It has also been denied that he enquired from his office after two days and from there he came to know that Baldev Singh accused along with his motorcycle is involved in 14 some case at Solan. PW-5 in his cross examination has stated that he was told by Daya Singh that on account of some quarrel with the police near Solan his motorcycle has been impounded by the police. PW-5 has further stated that he came to know that his motorcycle has been impounded by the police at Kandaghat, therefore, he went there. At Kandaghat, he came to know that his motorcycle has been involved in a murder case and Baldev was the accused in that murder case. PW-5 has also stated that he came to know about the incident when he came to the Court at Solan to get his motorcycle released and then he came to know that even then he did not know as to who was involved in the criminal case. 15. PW-6, Smt.Sarojani Gill, Superintendent, Nari Niketan, Chandigarh, has stated that she was Incharge of Nari Niketan, Chandigarh since 1989 and has acknowledged that Sunita (victim) an inmate of the Nari Niketan, was admitted in the Nari Niketan on 19.12.1988 under the orders of Executive Magistrate, Chandigarh. On 18.3.1989, she had escaped from the Nari Niketan without her permission and accordingly F.I.R. was lodged with the police. At the time of 15 admission, the address of the girl was given as House No.952, Jagadhri Gate, Ambala City and her father’s name was told as Shri Prem Nath and under the orders of the Executive Magistrate, Chandigarh, she was allowed to leave the Nari Niketan as she wanted to go herself. At that time, Sunita (victim) had given her different address i.e. daughter of Nand Lal, House No.5668, Tin Wali Gali, Kabari Bazar, Ambala Cantt. and Sunita (victim) did not want to go with her parents and escaped on 18.3.1989, before they came to the Nari Niketan. 16. PW-7, R.P.Kaushal, Tehsildar (Retd.), has stated that he had opened the seal wherein dagger was kept and the same was shown to Dr.Dhiman. PW-8 Joginder Paul, Patwari Halqua, Waknaghat, who had prepared Naksha Ext.PW-8/A of the place of occurrence. PW-9, Nand Lal, father of the victim Sunita, had stated that he was having seven children, out of which four sons and one daughter are alive and one son and one daughter had died and when his wife had fallen from the roof she was admitted in PGI and his daughter Sunita (victim) was deputed to look after her and from there 16 she was abducted and on recovery, she was sent to Nari Niketan, Chandigarh. PW-9 went with his wife to Nari Niketan to meet her and asked Sunita (victim) to accompany them but she refused. Sunita (victim) came to PW-9 on 8.6.1991 from the Nari Niketan and told to PW-9 that she was residing with one Baldev Singh, Sikh gentleman at Chandigarh and had become pregnant and Baldev Singh had assured to marry her. Baldev Singh was working as Reader in some Court at Chandigarh and PW-9 has also stated that Sunita (victim) had told him that Baldev Singh is now not ready to accept her as his wife. In cross examination, PW-9 has indicated that the Superintendent of the Nari Niketan told him that as and when Sunita (victim) was mentally fit she would be sent to home, however, despite such assurance Sunita (victim) did not come to the house of PW-9 and had come on 8th or 9th June, 1991. 17. PW-10, Ganesh Dutt, deposed that on 21.6.1991 he, along with Johri Ram (PW-3), had gone to attend a function in connection with the death of his father-in-law and started from Bathetu at about 4 or 4.30 PM and when they reached one kilometer short 17 of Waknaghat near Kandaghat on a point from where Johri Ram was to go to his village Dhar on National Highway, they heard noise of cries. There was one Sikh gentleman and one lady quarrelling with each other on the link road, namely, Wakna Hatri. The Sikh gentleman took that lady and threw her below the road and then they raised voice to call the people of the area. On hearing their voice, Kula Nand and Kamla Dutt came there. House of Kamla Dutt was about 200 feet from the place from where they raised the voice. PW-10 further states that they started towards the place of occurrence and saw a red coloured motorcycle No.PCI-396 being driven in a high speed towards Kandaghat by that Sikh gentleman and at the relevant time, he was wearing yellow coloured turban. PW-10 and Johri Ram noticed that a lady was crying with pain and PW-10 did not enquire from her and went towards a truck loaded with sand which was standing on the National Highway and asked the driver of that truck to assist them in taking the injured to the hospital, as the vehicle was fully loaded with sand, as such, the driver refused. In the meanwhile, Subhash came with his 18 motorcycle, who telephoned to the police from Kandaghat. PW-10 has further stated that he saw blood stains at that place where the lady was found to be lying with her mouth towards the ground, from where she was picked up and thrown below the link road. In cross examination PW-10 has stated that he told to his parents about the occurrence but did not tell anyone in the village. The house of Johri Ram was at a distance of 600 meters from the place where PW-10 was standing on the National Highway and Johri Ram was staying at the spot, whereas, PW-10 had left for his village. PW-10 in his cross examination has also stated that he told the parents that from National Highway he had seen a Sikh gentleman and a lady quarrelling with each other and 6 -7 persons had assembled there in his presence. 18. PW-11, Subhash Sharma, in his endeavour to support the prosecution case, has stated that on 20.6.1991, he was present in the house in his village. After hearing some noise, he came out of his house on the road side where Kamla Dutt met him there who told him to ring up Police Station, Kandaghat informing them that a person has 19 ran away on a motorcycle after committing some crime. PW-11 has further stated that he took lift from one scooterwala and reached Kiaribangla from where he rang up Police Station, Kandaghat and gave the information to the police and PW-11 has further stated that he saw many persons gathered and has also observed that a lady was lying in the bushes below the road and was crying. PW-11 accompanied the police to the place where said lady was lying. PW-11 found one Kirpan lying near the injured lady. In cross examination, PW-11 has stated that it took about 10 to 15 minutes from his village to Kiarighat and then to the spot. Police came to the spot after about half an hour of his arrival. From police side, there was Duni Chand ASI along with 2/3 Constables. Police remained there up to 10.30 and PW-11 did not accompany the police, however, his statement was recorded. In his cross examination, he has further stated that he told to the police that he went to Kiarighat after taking lift of scooter from the road side. PW-11 has further stated that he told the police that at that time Kamla Dutt and Johri Ram were also present 20 there, however, statement of PW-11 was recorded by the Police at 9 PM on the spot on 21.6.1991. 19. PW-12, Amba Dutt, Sub Inspector, has stated that on 21.6.1991 at about 8 PM, he along with Head Constable Bishan Dutt, Constable Prakash Chand, Constable Dharam Singh were on patrol duty in Sproon Bazar on the National Highway. At that time he was having walky-talky set with him on which he received a message from Kandaghat Police Station that one Sikh gentleman with pink turban on motorcycle No.PCI-396 has fled away towards Solan after committing murder of a lady. In Nakabandi of the National Highway from where one road goes towards Subathu in Sproon, about 10 – 15 minutes thereafter, a motorcycle came from Kandaghat side which was being driven by a Sikh gentleman. The vehicle number was PCI-396.