IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Criminal Appeal No. 6 of 2005 alongwith Criminal Appeal Nos.7,8,9,10 & 11 of 2005. Judgment reserved on: 12.05.2009 Date of Decision: 1st September, 2009. 1.Kartar Singh in Cr.A. No.6 of 2005 2.Surjit Singh in Cr.A. No.7 of 2005 3.Rajnikant in Cr.A. No.8 of 2005 4.Jaswant Singh in Cr.A. No.9 of 2005 5.Kapil Dev in Cr.A. No.10 of 2005 6.Surender Kumar in Cr.A. No.11 of 2005. ….. Appellants Versus. State of H.P. ( in all Cases) …. Respondent Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge The Hon’ble Mr. Justice V.K.Ahuja, Judge. Whether approved for Reporting? For the Appellants: Mr.Anoop Chitkara, Advocate. For the Respondent: Mr.R.M. Bisht and Mr.Rajesh Mandhotra,Dy.A.Gs. Deepak Gupta, J. All the aforesaid appeals are being disposed of by this common judgment since they arise out of one judgment passed by the learned Additional Sessions Judge (Fast Track court), Kangra in sessions Trial No.6 of 2004 decided on 8.11.2004. 2 The prosecution storey, in brief, is that on 18.3.2003 at about mid night Raja Ram deceased, husband of complainant Pritama Devi, PW-1 had gone to his fields to drive out some stray cattle. He was returning home along the path towards the back of his house when dog of accused Kartar Singh started barking and attempted to bite him. Raja Ram raised a noise and pelted stones at the dog. Hearing this noise Pritama Devi, PW-1, her daughter Anjana and son Neeraj went to the lentil of their house from where they saw the accused persons Jaswant Singh, Surjit, Kartar, Kapil Dev, Rajnikant and Surinder Kumar giving beatings to Raja Ram. Thereafter, all the accused dragged Raja Ram towards their house and tethered his legs with a Citrus tree and beat him to death with danda and darat blows. According to the prosecution, Pritama Devi thereafter went to the house of the Pradhan Rattani Devi and information about the offence was given to the Police Station by a telephonic call which was recorded at 12.45 a.m. vide daily diary report Ext.PW-17/A. FIR Ext.PW-17/C was recorded on the basis of this report. Thereafter, the police carried out investigation and telephonic and wireless messages were sent to various police officials who reached the spot. The spot was inspected and photographs were also taken. By the time the police party reached the spot Raja Ram had expired. It was found that his legs had been tied with a rope to a Citrus tree. The face of the deceased was drenched with blood. The Investigation Officer took into possession the soil stained with blood and also other articles which had fallen down from the pocket of the deceased at different places. The body of the deceased was sent for post mortem. According to the prosecution four of the accused were arrested on the same day and other two accused were arrested later on and at the instance of the accused rods and dandas were recovered. During the course of investigation the police 3 came to the conclusion that the accused Ramesh Chand and Partap Chand had harboured some of the main accused and hence a case under Section 212 IPC was made out against them. Thereafter, a challan was filed against the accused. Charge-sheet was framed. After trial the learned trial Court convicted the accused Kartar Singh, Jaswant Singh, Surjit Singh, Rajnikant, Kapil Dev and Surinder Kumar for having committed offences punishable under Sections 147, 148, 342 and 302 IPC and accused Partap Chand and Ramesh Chand were acquitted of having committed offence punishable under Section 212 IPC. The convicted accused were sentenced to rigorous imprisonment for life and to pay fine of Rs.25,000/- each for the offence under Section 302 IPC and in default of payment of fine to undergo further simple imprisonment for five years. The accused were also directed to undergo rigorous imprisonment for one year for each of the offences under Sections 147, 148, 342 IPC. It was further ordered that the amounts of fine if deposited shall be paid to the widow and minor children of the deceased. Aggrieved by this judgment six appeals have been filed by the convicted persons. It is pertinent to mention here that all the accused are real brothers. We have heard Sh.Anoop Chitkara, learned counsel for the appellants and S/Shri R.M. Bisht & Rajesh Mandhotra, Deputy Advocate Generals on behalf of the State. According to Sh.Chitkara, the judgment of the learned trial Court is absolutely illegal and liable to be set-aside on various grounds. He firstly urged that the eye witnesses PW-1 Pritama Devi widow of the deceased and PW-2 Anjana daughter of the deceased had not seen the earlier part of the incident and at best they are the witnesses to the later part of the occurrence. He therefore contends that the origin of the incident as explained by the accused Jaswant Singh and Surjit in their 4 statements under Section 313 Cr.P.C. is more probable version and should be accepted. He submits that in fact it was Raja Ram who had come to the door of their house and attacked accused Jaswant Singh when he came to open the door and thereafter when Jaswant and Surjit while acting in self-defence gave injury to the arm of the accused and then tied him to the tree. He contends that in fact these two accused had gone to the Police Station to lodge a complaint. He also submits that the other brothers have been falsely roped in the case due to prior litigation. He has referred to various contradictions in the prosecution version which shall be referred to hereinafter in detail. Shri Chitkara has also challenged the recovery of the iron rod Ext.P2 and darat Ext.P-13 pursuant to the so called disclosure statements. According to him the sticks were taken into possession from the spot when the police visited the spot at the first instance. In the alternative it is contended that the case against the accused is not of culpable homicide amounting to murder and at best a case of causing injury is made out. It is lastly contended that there was no pre- meditation on the part of the accused, the mere presence in the assembly of the other brothers would not make them guilty since there were no meeting of minds prior to the occurrence and that the occurrence occurred suddenly and in the heat of passion. On the other hand Sh.R.M. Bisht, learned Deputy Advocate General has urged that the learned trial Court has properly appreciated the evidence. He contends that there are eye witnesses in the present case and the statements of the eye-witnesses clearly proves the involvement of all the six accused in this very heinous crime where six brothers ganged together and beat to death the deceased. To appreciate the rival contentions of the parties it would be pertinent to refer to the statements of the witnesses. There are two eye- 5 witnesses to this crime. First is Pritama Devi widow of the deceased. According to her on 17.3.2003 at about 11-11.30 p.m. some stray animals were grazing in their fields and therefore her husband went out of the house to remove those animals. After he had removed the cows from the fields and was returning to his house the dog of Kartar barked and then the accused attacked her husband with sticks. She and her children came on the lintel of their house and saw that all the accused had thrown her husband on the fence on the other side of the house and were beating him with darat and sticks. She and her children witnessed the occurrence and raised a hue and cry. Her husband was also pleading for mercy and shouting that he be saved. Thereafter, the accused persons dragged her husband to their court-yard through a public path and a field of mustard crop. Her husband was also kicking and fighting to protect himself. Thereafter, Kapil Dev brought a rope and tied her husband with a tree. The witness shouted that her husband should not be tethered with the tree but the accused threatened to kill her. Thereafter, she went to her room to telephone the police but found that her telephone was out of order. She and her children were scared that the accused would also kill them. Thereafter, she alongwith her children went to the house of Rattani Devi and narrated the incident. Rattani Devi rang the police and informed them about the complaint made by the witness. The complainant also talked to the police on telephone. Then Pritama Devi along with her children walked to the Police Station and again informed them about the incident. Then the police went to the spot. Later Pritama Devi along with Pradhan Rattani Devi also reached the spot. By that time her husband was died. Some currency notes and one Tabiz and some documents had fallen down from the pocket of her husband. The currency notes and Tabiz were blood stained. Two sticks and iron rods were lying near the Citrus tree 6 with which her husband was lying dead. Photographs were also taken on the spot. She further states that the accused ran away from the spot. According to her accused Kartar was carrying a darat. Rajnikant had used an iron rod with grooves which he threw into the fence. The accused identified the Chapel of her husband Ext.P-1, the iron rod Ext.P-2, Tabiz Ext.P-3, currency notes Ext.P-4 and revenue papers Ext.P-5. she also identified the two sticks one of Jamun and another of Bamboo. The Bamboo stick was identified as Ext.P-6 and Jamun stick as Ext.P-7. The clothes of the deceased were also identified which clothes were blood stained. According to this witness the light had been switched on in the house of the accused and also in the house of Hoshiaru Devi. According to her there it was a moon-lit night. Under this light she identified the accused. She also identified the rope Ext.P- 12 with which her husband was tethered to the Citrus tree. According to her, Hoshiaru and Rajinder live near their house. They witnessed the occurrence from their house but did not come to the spot. The witness has been cross examined to the effect that she, her husband, Hoshairu Devi and her two sons were facing trial in the complaint lodged by the accused. According to her a false case had been registered against them. However, from the statement of the various witnesses it is apparent that there was a lot of ill-will between the parties and there were a number of criminal cases pending against each other. She has admitted the suggestion that her statement was recorded at the Police Station. She states that she informed the police that her telephone was out of order but does not know whether this fact was recorded by the police or not. She admits that neither she nor her children tried to save her husband. According to her the accused would have killed them also. She has denied the suggestion that on the night intervening 17th and 18th March, 2003 only accused Surjit and Jaswant 7 were present in their house. She has denied the suggestion that the deceased Raja Ram had kicked upon the door of the house of the accused and when Surjit came out of the door then her husband gave a blow of darat which hit him and when Jaswant came on the door the deceased also gave a blow of darat. She denied that Jaswant and Surjit acted in self defence and caused injuries on the arm of the deceased and thereafter tied him to the Citrus tree. She has denied the suggestion put to her that Rajnikant and Kapil Dev accused had gone to the house of the in-laws of Rajnikant. She also denied the suggestion that Kartar Singh and Surinder accused were not present on the spot and had gone to the house of their sister who had met with an accident. She has admitted that some injuries were caused to the accused but according to her these injuries were caused when the deceased Raja Ram was trying to save himself from the accused. From the suggestions made by the accused it is obvious that as far as Jaswant and Surjit are concerned they set up the plea of self-defence and a plea of alibi was set up by the rest of the accused. PW-2 Kumari Anjana is the 17 years old daughter of the deceased. According to her, after her father had gone to remove the cows and was returning home Kartar’s dog started barking. Then Jaswant accused abused her father and gave blow of danda on the head of deceased Raja Ram. According to her they after hearing the cries went to the roof of their house. They saw that all the accused had thrown deceased Raja Ram on the fence and they were beating him with darat and sticks. According to her the accused were carrying darat, sticks and iron rod. She stated that her mother, brother and she were begging for mercy from their roof. Thereafter, the accused dragged her father through the grass and mustard crop and then accused Kapil Dev brought a rope and tethered the legs of her father to the 8 Citrus tree. They went down to save her father but the accused ran away. Then they went to the house of Pradhan from there her mother talked to the police. She also states that they could not talk to the police from their house since the telephone was out of order. She states that she had seen the accused as there was light in the house of accused and also in the house of Hoshiaro Devi and also there was moonlight on that night. She has also stated about the currency notes, Tabiz and revenue papers being found on the spot. According to her when the police reached the spot her father had already expired. She states that when they were on the roof they had told the accused that they were like their brothers and asked them to have mercy on her father. She has also been cross examined to the effect that there was a lot of previous litigation between the parties. She admits that when they heard the first noise they were inside the house. She has been confronted by her statement Ext.DY wherein certain facts which she narrated in her statement in Court were not recorded. In cross examination she states that when after making report to the Pradhan they went to the Police Station all the accused persons were already in the Police Station and were making their report to the Havaldar. She denied the suggestion that only Jaswant and Surjit were present in the Police Station. She has denied the suggestion that her father had kicked the door of the house of Kartar and attacked Surjit and Jaswant and they acted in self defence. PW-3 Hoshiaro Devi was the other eye-witness but she has turned hostile. According to her, on the night in question, she was woken up by her son little after mid-night when he told her that he could hear the noise of sticks. She came outside her house and heard the noise but did not go to the place from where the noise was coming due to fear and remained standing inside the house. She states that her 9 son was standing outside in the court-yard but he also did not go to the spot. According to her she does not know who were quarrelling. After being declared hostile she was cross examined by the Public Prosecutor. She admits that when she came out of the house she switched on the light of her Courtyard. She admits that the house of deceased is 7-8 feet away from the side of her house. She admits seeing the children of Raja Ram on the lentil but according to her the house of Kartar is situated at a distance of about 60-70 feet from her house. The witness states that she did not go to the spot of occurrence on account of fear. She also states that it was a moon lit night. She denied that she had not witnessed the occurrence. This witness has been asked certain Court questions. According to her the house of Raja Ram is at a slightly higher level than her house but is visible from her house and house of Kartar is beyond the house of Raja Ram and is only slightly visible from her house. She also states that the field of mustard was not visible from her house since it is at the back of the house of Raja Ram. PW-4 Rajinder is the son of PW-3 Hoshiaro Devi. According to him at about 12-12.30 a.m. on the day of incident he was sleeping in his house and heard the noise of sticks blow. He kept on sleeping thinking that there might be stray cattle. Thereafter, he woke up his mother and then they switched on the light of the courtyard and went outside the house. According to him there was noise outside the house but they did not see any person. This witness was also declared hostile since he had resiled from his statement under Section 161 Cr.P.C. He was cross examined by the prosecution. He admits that there was a lot of litigation going on between the families of the accused and the deceased. He then makes a very revealing statement that he does not want to get involved in any such complications. He admits that he had 10 seen Pritama Devi and her children crying on the lentil of their house. According to him at about 1-1.30 a.m. he had seen the broken mustard field and also seen the body of Raja Ram tethered to a Citrus tee in the courtyard of Kartar. He admits that there were a number of injuries on the head of Raja Ram and he was drenched with blood. He however denied that he saw the accused person giving beatings to Raja Ram. He also admits that lights of the house of Kartar were switched on and that it was a moon lit night. He denied having witnessed the occurrence. PW-5 Rattani Devi is the Pradhan of Gram Panchayat Drung. She states that on the intervening night of 17th and 18th March, 2003 Smt.Pratima Devi came to her house along with her children and she was crying. Pratima Devi informed this witness that the accused Kartar Singh, Jaswant, Surjit, Rajnikant, Kapil Dev and Surinder had murdered her husband and tied him with a rope. She then rang up the Police Station. She first talked to the police and thereafter Pratima Devi talked to the police. Then Pratima Devi and her children went to the Police Station. She also later went to the Police Station and then to the spot. When she reached the spot she found that body of Raja Ram was tied with the Citrus tree and a number of persons including the police personnel, ward member and photographer were present. She and one Kuldip were witnesses to the recovery of blood vide seizure memo Ext.PW-5/A, recovery of Jamun and Bamboo sticks vide memo Ext.PW-5/B, recovery of currency notes, Tabiz and Revenue Papers recovered vide memo Ext.PW-5/C and certain leaves, stones etc. vide Memo Ext.PW-5/D. According to her she was again called to the Police Station on 21.3.2003 when statements of Kapil and Surjit were recorded in her presence. Kapil had made a statement that he had given a blow of darat to the deceased and hidden the darat behind the heap of bricks. Memo in this behalf is Ext.PW-5/E. Surjit had made a 11 statement that he had given a blow of stick and thrown the stick in the field of sarson. According to her darat was got recovered by the accused Kapil from the heap of bricks and the same was stained with blood. The police had wrapped the darat in cloth and sealed with seal- B and prepared seizure memo Ext.PW-5/G which was signed by her and Partap. A bamboo stick was got recovered by accused Surjit from the field of sarson vide recovery memo Ext.PW-5/H. In cross examination she states that in fact she had not gone to the Police Station on the night of the incident but she states that she went to the spot at 1 a.m. when the police called her. PW-6 Sanjay Sharma, is the photographer who took the photographs of the deceased body, the place where the blood was lying, the place where the sarson crop was broken and the places where the currency notes, Tabiz and revenue papers were lying. PW-7 Partap Chand is also the witness to the statement of the accused Rajnikant and to the recovery of iron rod and chapel of Raja Ram deceased. PW-8 Rijhu Ram is the witness to the recovery of stick Ext.P- 17 allegedly recovered at the instance of Surinder accused. It is not relevant to refer to the statements of PWs 9 to 16, 18 and 21 since they mainly relate to the offences against accused who have been acquitted or are formal in nature. PW-17 MHC Satpal has proved the rapat Ext.PW-17/A and its true copy Ext.PW-17/B. He has also proved the FIR Ext.PW-17/C which is written on the basis of the rapat Ext.PW-17/A. In cross examination he admitted that there are number of complaints lodged by the accused party against the deceased. He has denied the suggestion that on that night Jaswant and Surjit had come to the Police station. He 12 has denied the suggestion that Daily Diary No.32 was prepared subsequently and no telephonic call from Pratima Devi was received. PW-19 Dr.Sunita Sood examined accused Jaswant Singh and found one incised wound measuring around 6.5 cm x 2.5 cm on his left arm. The injury was simple and caused by sharp weapon. The probable duration of injury was 24 hours. She also examined accused Surjit and found one lacerated wound on the occipital region of scalp measuring 5 cm x 1 cm x 05 cm in which injury was also simple. This injury was caused with a blunt weapon. According to her the accused Jaswant and Surjit were brought by the police for medical examination at about 4 a.m. on 18th March, 2003. PW-20 Dr.Kulbhushan Sood conducted the post mortem on the body of the deceased Raja Ram. He found the following injuries on his person: “On the scalp: 1. Lacerated wound in left parietal area 6 cm long, skin deep, contaminated with sand. Wound was linear. 2. L-shape incised wound 13 cm long in right front parietal area. Bone deep. 3. Incised wound 4 cm long, bone deep, obliquely placed near the hair line, bone deep. 4. Incised wound 8 cm long, gaping, linear wound on the right parietal area. Bone deep. 5. Incised wound 7 cm long, gaping, linear on the left occipital parietal region. Bone deep. 6. 5 cm incised wound along side and just above injury No.5 as mentioned above. Thorax Apparently thorax was intact. Ribs were cartilages were intact. External injuries on the thorax wall:- 1. A 28 cm long bruise located on the right side of chest and in the front of right shoulder also. Width 1 and 1/2cm. 2. A 23 cm linear bruise on the right side of chest laterally obliquely placed. Width is 1.5 cm 13 3. A linear bruise horizontal placed on lower chest and adjoining epigastrium 20 cm long and 3 cm wide. 4. A 3 cm long abrasion on right shoulder which is crusted with fresh blood. Back of thorax 16 similar bruises which were linear placed criss cross, on whole of the back length varying between 10 cm to 22 cm and width varying between 1.5 cm to 3 cm. Viscera, bones, and cartilages, larynx and trachea, lungs, heart, large vessels were normal. Abdomen