IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 334 of 2007. Date of decision: 10th December, 2009. Tapan Kumar Dass …..Appellant Versus State of H.P. ……Respondent Coram: The Hon’ble Mr. Justice Surjit Singh, J. The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 . For the appellant: Mr. Chandranarayan Singh, Advocate. For the respondent : Mr. Ramesh Thakur Assistant Advocate General. Surinder Singh, J (oral). In this jail appeal the appellant has challenged the judgment of his conviction passed by the learned Sessions Judge, Chamba, whereby he has been convicted under Section 302 of the Indian Penal Code for committing the murder of a co-labourer named Bittu and sentenced him to undergo imprisonment for life and to pay a fine of Rs.10,000/-, in default of payment of fine to undergo rigorous imprisonment for a period of two years. 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. - 2 - In brief, the facts giving rise to the instant appeal can be stated thus. The appellant herein, Bittu (deceased), Salastin and Fangu Minj (PW-9) were working at a place known as Durgathi with Contractor Puran Chand. Someone is alleged to have committed the theft of diesel from the compressor, therefore, 26th March, 2006 given off day to the labour. Bittu (deceased), Salastin and Raju (PW-8), brother of the deceased, took the balance payment from Desh Raj Rana. PW-9 Fangu Minj met them at village Durgathi. On coming to know that the aforesaid labourers had received their payments, Fangu Minj asked them to give a party. Thereafter they purchased a bottle of liquor from a liquor vend and all of them enjoyed the feast together at Durgathi. PW-1 Deepak Kumar while going to his house, met the aforesaid persons near ‘Dhai-Mata Mandir’ around 6.30 p.m. All of them were drunk. Some dispute arose between them. Wordily duel took place between the trio, i.e., PW-9 Fangu Minj and Bittu (deceased) and the appellant. From the temple, appellant, Bittu (deceased) and PW-9 Fangu Minj went ahead. Salastin was also with them. He was to catch the bus to reach the house of Contractor Puran Chand. - 3 - Bittu (deceased) made an allegation against the appellant that he had had stolen the diesel from the compressor, which rendered them without work for the day. He insisted upon him to accompany him to the Contractor. When they could hardly cover about 100 meters from the temple, it is alleged that the appellant pushed Bittu (deceased) from a precipice down to the river Ravi. PW-9 Fangu Minj asked him as to why he had pushed the deceased and threw him down in the river. The appellant remarked that Bittu used to project himself a lot, therefore, he had killed him. On 27th March, 2006, PW-7 HC Rajinder Kumar and other police officials were present in village Durgathi in connection with the investigation of some case. At about 3.30 p.m., PW-1 Deepak Kumar met them and got recorded his statement under Section 154 of the Code of Criminal Procedure, precisely making the allegations of attempting to murder of Bittu by the appellant. On the basis of which, Ruka Ext.PW-5/A was sent to the Police Station for the registration of the case. On receipt of the Ruka, FIR Ext.PW-1/B was registered under Section 307 of the Indian Penal Code. - 4 - HC Rajinder Kumar (PW-5) visited the spot and made a search for Bittu. The dead body of Bittu was found lying on the side of the river on a big stone. The police took the photographs of the dead body. The dead body was pulled up with the help of some persons and was brought on the road. The case was converted under Section 302 of the Indian Penal Code. The police prepared the inquest paper Ext.PW-5/B. Since it was raining heavily and had gone dark, the dead body was kept in the shed of ‘Dhai-Mata Mandir’. Next morning PW-7, Inspector Partap Singh reached the spot. He took over the investigation from HC Rajinder Kumar. The appellant was arrested and the dead body was sent for autopsy to District Hospital, Chamba, through HC Rajinder Kumar. On 28th March, 2006, PW-7, Inspector Partap Singh, prepared the site plan Ext.PW- 7/A. Pant Ext.P-1 and Jacket Ext.P-2 of the deceased which were found at different places on the river side were taken into possession vide memo Exts.PB and PC, respectively. The postmortem of the dead body was conducted by PW-2 Dr. Vinod Sharma. He noticed - 5 - contusion on head and multiple injuries on different parts of the dead body and prepared a detailed report Ext.PW-2/B. Viscera of the deceased was sent for the forensic examination. The doctor gave the tentative opinion that the deceased had died due to multiple injuries viz. head injuries and contusions, i.e., glutei and hypothermia. After receiving the report, the doctor confirmed his tentative opinion vide report Ext.PW-2/C on 28th August, 2006. Vide report Ext.PW-7/C, the chemical examiner on the examination of viscera of deceased detected contents of in viscera. On the completion of the investigation, Challan was presented in the Court for the trial of the appellant. The appellant was accordingly charge- sheeted. He pleaded not guilty and claimed trial. To prove its case the prosecution examined its witnesses and the appellant was also examined under Section 313 of the Code of Criminal Procedure. He pleaded his innocence and alleged the false implication in the case. He stated that the deceased alongwith his brother Raju (PW-8), Fangu Minj (PW-9) and - 6 - Salastin had consumed liquor together. The deceased might have fallen down into the river because of excessive consumption of alcohol. The appellant was called upon to enter into defence, but no evidence in defence was led. The learned trial Court disbelieved the defence version. While relying upon the statements of the alleged eye witnesses the learned trial Court convicted and sentenced the appellant as aforesaid, which has been assailed in this appeal. The appellant was unrepresented, therefore, Shri Chandranarayan Singh, Advocate, was appointed as legal-aid counsel to defend him at the State expense. The copy of the paper-book was supplied to him. Heard and gone through the evidence on record. Shri Chandranarayan Singh, learned counsel for the appellant, took us through the prosecution evidence and pointed out material contradictions to us occuring in the statements of the alleged eye witnesses. According to him, the learned trial Court conveniently ignored it, which resulted into the miscarriage of justice. He further - 7 - submitted that the deceased was excessively drunk, the possibility of being fallen down accidentally cannot be ruled out. The story of having been pushed down by the appellant appears to be a cock and bull story. He also submitted that the record exhibits that the case against the appellant was got registered by Deepak Kumar in collusion with the brother of the deceased Raju and PW-9 Fangu Minj and other labourers with a fear in their mind that they might be implicated in this case as all were together. The learned counsel further argued that since the statements of the witnesses are not worth inspiring confidence and the learned trial Court wrongly relied upon their testimonies, the impugned judgment of conviction and sentence passed against the appellant deserves to be set aside. Contra, Shri Ramesh Thakur, learned Assistant Advocate General has supported the impugned judgment of conviction and sentence and submitted that there is no error in the judgment of the learned trial Court. Although, the above prosecution witnesses, the deceased and the appellant all were drunk and there was a wordily duel between the deceased and the appellant over the theft of the diesel from - 8 - the compressor, caused annoyance to the appellant thus he pushed him from the precipice down to the river. The prosecution story stands fully corroborated by PW-9 Fangu Minj. We have given our thoughtful consideration to the rival contentions of the parties and reappraised the evidence on record carefully. PW-1 Deepak Kumar turned hostile and did not fully support the case of the prosecution on material particulars. He stated that on 26th March, 2006 there was no oil in the compressor, thus he alongwith other labourers was enjoying the holiday. He also stated that when he was going from Durgathi to his house in village Gureth, PW-9 Fangu Minj and PW-8 Raju, the brother of the deceased, alongwith other labourers had met him near ‘Dhai-Mata Mandir’. All of them were drunk. The appellant was going to his house which was nearby to his quarter. He also stated that 2-3 labourers were under the influence of liquor started quarrelling with the appellant and gave beatings to him. PW-9 Fangu Minj and the deceased also started quarrelling with each other, thereafter they picked-up a quarrel - 9 - with the appellant. He further stated that from ‘Dhai-Mata Mandir’ at about 6.30 p.m. PW- 9 Fangu Minj and Bittu (deceased) went ahead. After sometime the appellant met him after sometime when he was returning towards ‘Dhai- Mata temple’. He also stated that he did not know what had happened on that date. However, next day, he came to know only that Bittu had died. He categorically stated that he did not see anybody pushing the deceased into the river. He admitted having given his statement (Ext.PA) to the police but denied that he had given any statement with regard to the pushing of the deceased by the appellant as alleged. He also stated that when his statement was being recorded by the police he was in utter confusion. PW-8 Raju is the brother of the deceased. He admitted his presence on 26th March, 2006 alongwith the deceased, Fangu Minj and the appellant at village Durgathi and having consumed liquor by all of them and stated that everyone was accusing the appellant that he had stolen the diesel from the compressor in their absence. They asked the appellant to accompany them to the Contractor to take him to task as because of - 10 - his act they were not in a position to work and earn their livelihood. When the appellant refused to accompany them, they left him on the spot and thereafter all of them started going to their home and on the way at ‘Dhai- Mata Mandir’ they found appellant sitting there. One Kuldip also joined them and in the temple asnd all of them again consumed there a bottle of liquor. PW-8 Raju felt unwell and told his brother Bittu that he would be leaving to his quarter and left the place. He further stated that on next morning PW-9 Fangu Minj informed him that the appellant had pushed Bittu down into the river from a precipice and he (Fangu Minj) was not aware whether Bittu was alive or not. He also informed him that Bittu had fallen in the water near the temple and he swam out of the water to save himself, but died lateron. He further stated that the police inspected the spot in his presence and he handed over Pant Ext.P-1 and Jacket Ext.P-2 of the deceased to the police which were taken into possession vide memo Exts. PB and PC, respectively. In his cross-examination, he stated that liquor bottle was brought by Salastin from a vend in village Durgathi and they had - 11 - consumed the whole bottle in the house of one of their friends including the appellant. The drinking continued for about half an hour. From there they started to ‘Dhai-Mata Mandir’ on foot which was about 2/2½ kilometers. Around 5.00 p.m. they reached near the temple where Kuldip also met them. He stated that Fangu Minj informed him next morning at 6.00 a.m. that his brother Bittu had died. PW-9 Fangu Minj, fully corroborated the prosecution story regarding taking liquor by them including the deceased and the appellant at village Durgathi. He further stated that from there he alongwith Raju and others, who used to run the compressor went to village Luna. Bittu (deceased) and Salastin were engaged in their talks and all the other four persons stopped at village Luna and waited for the bus to go to village Chatradi. Since Salastin was not accompanying them, therefore, he (PW-9 Fangu Minj) went in search of him. When he reached near the temple he found the appellant and Bittu (deceased) engaged in a wordily duel with each other over the theft of diesel oil. He also asked Salastin about the reasons why he did not accompany them to village Chatrudi. On this, - 12 - he looked at the watch and left them there to catch the bus from village Luna as he was already late. He further stated that the appellant and deceased started quarrelling with each other in the presence of PW-1 Deepak Kumar. Bittu (deceased) insisted upon the appellant to accompany him to the Contractor but he intervened and told them not to fight with each other. Thereafter appellant, Bittu (deceased) and PW-1 Deepak Kumar left together to village Luna to catch the bus to village Chatrudi where Puran Chand Contractor used to reside. When they had covered a distance of about 100 meters, the appellant pushed the deceased down from hillock and threw him in the river. When he asked the appellant as to why he has done so, he remarked that Bittu (deceased) used to project himself a lot, therefore, he had killed him. In his cross-examination, he stated that they reached village Luna at about 5.30 p.m. He also stated that when he reached ‘Dhai-Mata Mandir’ two local persons whose names he did not know were also present. He denied that Bittu (deceased) was badly drunk. He further stated that he saw an empty bottle in the temple. He did not know that Bittu had - 13 - taken the liquor in the said temple. He also stated that he reported the incident to the police on 27th March, 2006 alongwith PW-8 Raju, the brother of deceased, but his statement was recorded in the evening. He denied the defence that all of them including the deceased were badly drunk and were not in a position to walk and stand properly and that Bittu (deceased) fell in the river accidentally from a precipice. On the critical examination of the above evidence, we find total inconsistency in the statements of PW-9 Fangu Minj and PW-8 Raju, brother of the deceased. As already noted above, PW-8 Raju stated that he was informed by PW-9 Fangu Minj about having pushed the deceased into the river by the appellant, but, surprisingly, he did not inform either the brother of the deceased immediately or the police. Further, PW-8 Raju, as stated by him, was informed on 27th March, 2006 by PW-9 Fangu Minj at 6.00 a.m. then why PW-8 Raju did not report the matter to the police or at least to his Contractor. These important quarries stand unanswered which exhibit their unnatural conduct. Further the story of swimming by the - 14 - deceased to the bank of river is alleged to have been told to him by PW-9 Fangu Minj, but regarding this Fangu Minj did not utter even a single word. If Fangu Minj had seen the deceased swimming out of water why he did not try to save or at least take his colleagues to save him. Further, PW-9 Fangu Minj stated that the alleged incident had taken place in the presence of PW-1 Deepak Kumar, but PW-1 Deepak Kumar did not support this version. According to him, all the three including the deceased had gone ahead from ‘Dhai-Mata Mandir’ and the appellant returned after sometime towards ‘Dhai-Mata Mandir’. He categorically stated that he did not see the appellant pushing the deceased as alleged. Further the aforesaid persons were living almost in the same vicinity - in separate quarters, but they did not talk about the said incident to any one in the vicinity to find out as to what had happened to their colleague. Even on the next day as stated above, no attempt was made by PW-9 Fangu Minj to immediately report the matter to the police. Although, he stated that he alongwith Deepak Kumar (PW-1) reported the matter to the police, but there is no - 15 - reference in the FIR Ext.PW-4/B or in the statement of PW-1 Deepak Kumar showing that PW-9 Fangu Minj was also accompanying him. The Chemical Examiner on examination of viscera of the deceased reported that it contained the contents of liquor, whereas the doctor opined that the cause of death of the deceased was hypothermia. In view of the above material contradictions and the circumstances the case against the appellant stands not proved. Due to the excessive consumption of liquor, possibility of causing imbalance and accidental fall cannot be ruled out. The statement of PW-9 Fangu Minj does not inspire confidence. Therefore, the appellant on the strength of above contradictory statements not worth inspiring confidence and unnatural conduct of PW-8 Raju and PW-9 Fangu Minj, deserve to be acquitted by giving him the benefit of doubt. For the above reasons, the judgment of conviction and sentence passed by the learned trial Court is set aside. Consequently, the appeal is allowed. The appellant is acquitted of the charge framed against him. - 16 - The appellant being in jail serving the sentence awarded by the learned trial Court, be set at liberty forthwith in case his detention is not required in any other case. The Registry is directed to prepare the release warrant accordingly. (Surjit Singh),J. December 10th, 2009 (Surinder Singh),J. (rc)