- IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.A No.14 of 2006 Decided on : August 24, 2009 Sanjay Kumar …Appellant. Versus State of H.P. …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 Yes. For the Appellant : Mr. Ashwani Pathak, Advocate. For the Respondent : Mr. Ramesh Thakur, Assistant Advocate General. Surjit Singh, J (Oral) Appellant Sanjay Kumar is aggrieved by the judgment, dated 8th November, 2005, of learned Sessions Court, whereby he has been convicted of offence, under Section 302, read with Section 34 of the Indian Penal Code, and sentenced to undergo imprisonment for life and to pay a fine of Rs.50,000/-, which amount, on realization, has been ordered to be paid, as compensation, to the parents of the deceased. In default of payment of fine, appellant has been ordered to undergo imprisonment for a further period of one year. So, he has filed the present appeal. 2. Case of the prosecution, which led to the trial of the appellant, may be stated. On 18th March, 2004, there Whether reporters of the local papers may be allowed to see the judgment? …2… was a village fair in the area of village Kachhihari, Police Station Kangra. Pritam Chand (PW-12), father of the deceased, had set up a stall for preparing and selling Jalebis. Around 6.30 p.m., when he was at his stall, Sher Singh (PW-2) came to him, at his stall, and told that someone had stabbed his son Vipin Chand (deceased), near the bridge of village Kachhihari. PW-12 Pritam Chand went running to the bridge. He saw Vipin Chand in injured state, writhing in pain. Pritam Chand managed to arrange a Jeep and with the help of his nephew started with his son, injured Vipin Chand, in the said Jeep, for the hospital at Kangra. The doctor at Kangra stitched the wound, which was in the abdomen and referred Vipin Chand to the Hospital at Dharamshala. Pritam Chand then put his son in the same Jeep and started for the Hospital at Dharamshala. On the way, Vipin Chand told Pritam Chand that there were three persons, who had injured him and that one of those three persons was Vinod Kumar, who had dealt a dagger blow to him and that Vinod Kumar was accompanied by another boy, named Vikas, and one more person. He could not complete his sentence and became unconscious. The name of the third person, thus, remained undisclosed by him. On reaching the hospital at Dharamshala, doctor declared that Vipin Chand was dead. 3. Police was informed. PW-9 HC Suresh Kumar went to the Hospital. There he recorded statement, under …3… Section 154 of the Code of Criminal Procedure, of Pritam Chand, which is Ex. PW-9/A. It is in the said statement that Pritam Chand disclosed the aforesaid facts. 4. Inquest was conducted. Inquest report is Ex. PW-6/B. Postmortem was conducted by PW-6 Dr. Harjinder Singh Sohal. He noticed a stab wound, spindle shaped, 4cm x 1.5cm x 6cm (deep) over the upper part of middle abdomen, extending up to the mid part of liver, which was obliquely directed from right to left, with sharp margins. He also noticed stab injury on the liver, mid front of right lobe, measuring 3.5cm x 1cm x 3.5cm, with collection of about 2.5 litres blood in the peritoneal cavity. The injury was opined to be ante-mortem. Cause of death was opined to be hemorrhagic shock, resulting from the aforesaid injury. Deceased was opined to be under the influence of liquor. Time lag between the injury and the death was opined to be 15 minutes to 3 hours and between death and postmortem 12 to 24 hours. Postmortem was conducted on 19th March, 2004 at 12 noon. 5. During the course of investigation, police arrested the present appellant, and Vikas and Vinod, named as accused in the statement, Ex. PW-9/A. Vikas and Vinod were juveniles and so they were sent to the Juvenile Justice Board, for trial. 6. During investigation, Vinod Kumar, one of the juvenile delinquents, made a disclosure statement, record …4… of which is Ex. PW-7/A. Pursuant to this disclosure statement, one Rambi (an instrument used by Cobblers for cutting leather), Ex. P-1, was recovered. Police also recovered the clothes of the appellant and two juvenile delinquents. Appellant allegedly produced a Safari suit, Ex. P-3, comprising of a shirt and pants. Clothes of the appellant, juvenile delinquents, the clothes removed from the dead body of deceased Vipin Chand, and the blood stained earth and pebbles collected from the spot were sent to the Chemical Examiner, who, vide report Ex. PW-14/K, opined that some clothes of the juvenile delinquents, pants of the Safari suit, Ex. P-3, produced by the appellant, clothes of the deceased and blood stained earth and pebbles, collected from the spot, had stains of human blood of AB group. Police also examined certain witnesses, who told that the present appellant and delinquent Vikas held the deceased, while juvenile delinquent Vinod stabbed him with a Rambi, in the abdomen. 7. Two juvenile delinquents were sent for trial to the Juvenile Justice Board at Una, while the present appellant was challaned in the Sessions Court at Dharamshala. Learned Sessions Judge assigned the case to the Fast Track Court. Learned Presiding Officer, Fast Track Court, who is designated as Additional Sessions Judge, charged the appellant, with offence, under Section 302, …5… read with Section 34 of the Indian Penal Code, and on his pleading not guilty tried him, for the said offence. 8. Prosecution examined 14 witnesses, including PW-12 Pritam Chand, the father of the deceased, PW-2 Sher Singh, and PW-3 Vijay Kumar and PW-4 Om Prakash, as eye witnesses, besides examining PW-7 Mast Ram, in whose presence Rambi, Ex. P-1, was discovered and the clothes of the juvenile delinquents and the present appellant were taken into possession and PW-9 HC Suresh Kumar, who recorded the statement, under Section 154 of the Code of Criminal Procedure, Ex. PW-9/A, of PW-12 Pritam Chand and PW-14 Inspector Sanjiv Chauhan, Investigating Officer. 9. We have heard the learned counsel for the appellant as also the learned Assistant Advocate General and perused the record. 10. PW-1 Vinod Kumar stated that he was at the stall set up by PW-12 Pritam Chand, when PW-2 Sher Singh came here and informed that deceased Vipin Chand had been stabbed and that he went to the spot on a bicycle and on reaching the spot found Vipin Chand lying injured. He stated that PW-12 Pritam Chand followed him. He also stated that he asked deceased Vipin Chand as to what had happened, upon which he told that the eldest son of Birbal (appellant is the eldest son of Birbal) had given him the blow of knife, while another son of Birbal and another boy …6… caught hold of him. He deposed that thereafter he arranged a Jeep, in which Vipin Chand was taken to the Hospital at Kangra and from Kangra, on being referred, to Zonal Hospital at Dharamshala, injured was carried in the same Jeep to Dharamshala. 11. The witness is contradicted by his statement Ex. DC, which he made to the police, under Section 161 of the Code of Criminal Procedure, on the very day of the occurrence. In the said statement, he got recorded, vide portion ‘B’ to ‘B’, that deceased disclosed to his father, while being carried in a Jeep from Kangra Hospital to Dharamshala Hospital, that he had been dealt a dagger blow by Vinod Kumar while two other boys, one of whom was named Vikas, held him. He stated that he wanted to name third boy also, but before that he became unconscious. He was duly confronted with the relevant portion of his statement, under Section 161 of the Code of Criminal Procedure, which is marked ‘B’ to ‘B’. He denied having made such a statement. He was also confronted with portion ‘A’ to ‘A’ of his statement, under Section 161 of the Code of Criminal Procedure, wherein he stated that he lateron came to know that the present appellant and Vikas had held the appellant, while Vinod Kumar dealt a blow in his (deceased’s) abdomen, with a Rambi. He denied having made such a statement. …7… 12. PW-2 Sher Singh simply stated that he had seen the deceased lying unconscious, with bleeding injury, at a distance of about 3/4th of a kilometer from Kachhihari fair and that he went to the site of the fair, where the father of the deceased had set up his stall and informed him. 13. PW-3 Vijay Kumar stated that on 18th March, 2004, around 6 or 6.30 p.m., when he was sitting at a distance of 10-15 yards from the place of occurrence, in the company of Om Prakash (PW-4), he saw that deceased Vipin Chand came from the side of Kachhihari and thereafter he saw some boys came from Kholi side and two of those boys caught hold of the deceased Vipin Chand and the third stabbed him with some sharp object, in the abdomen. He stated that he did not know the names of those boys, but knew them by faces. He stated that the appellant, who was present in the Court, at the time he made the statement, was one of those three boys. He stated that he provided water to injured Vipin Chand and in the meanwhile his father came, who took him in a Jeep. 14. In the cross-examination, the witness denied having made any statement to the police during investigation or even subsequent thereto. He stated that he even did not try to contact the police. The statement of the witness is rendered doubtful not only by the fact that he denies having made any statement to the police, though we find a statement dated 18th March, 2004, purportedly made …8… by him, on record, but also by the fact that despite his having stated that he was on the spot, when PW-12 Pritam Chand came there, PW-12 Pritam Chand did not say that he was there. Now, if the witness had seen the incident taking place and he was there when PW-12 Pritam Chand reached the spot, he was supposed to have told him that he was a witness to the occurrence and was in a position to identify the boys, who had assaulted the deceased. Not only that Pritam Chand, the father of the deceased, does not speak of the presence of the witness, but PW-1 Vinod Kumar also does not say if PW-3 Vijay Kumar was there and he told that he had seen the occurrence taking place. 15. The witness though claims that he knew the assailants by faces and that the appellant was one of those three assailants, yet he did not say what role was played by the appellant in the commission of the crime. He simply stated that there were three boys, two of whom held the deceased and the third one stabbed him with a sharp weapon. Now, had he, in fact, been on the spot and was knowing the assailants by faces, as claimed by him, he was supposed to be knowing the role played by each of the three assailants and would have testified about the same while in the witness box. 16. For the same very reasons, for which the statement of PW-3 Vijay Kumar does not inspire confidence, statement of PW-4 Om Prakash can also not be believed. …9… This witness though testified that he and PW-3 Vijay Kumar were present near the site of the occurrence, when the incident took place and that he saw two boys catching hold of Vipin Chand and third boy dealing a blow with an instrument meant for cutting leather to the deceased, but neither PW-12 Pritam Chand, the father of the deceased, nor PW-1 Vinod Kumar says that this witness was present on the spot or disclosed that he had seen the incident taking place. Moreover, according to this witness, blow with an instrument meant for cutting leather was given by the appellant, but to the police, vide portion ‘B’ to ‘B’ of his statement, Ex. DB, he stated that the appellant and Vikas caught hold of the deceased, while Vinod Kumar stabbed him. He is also contradicted by the earliest version given to the police as also the statement of PW-14 Inspector Sanjiv Chauhan, Investigating Officer of the case, per which blow was given by juvenile delinquent Vinod Kumar. 17. Statement of PW-12 Pritam Chand, the father of the deceased, also does not inspire confidence. The witness, while in the Court, testified that the deceased told, when being taken to the Hospital at Dharamshala, after having been referred by the doctor of Kangra Hospital, that he had been stabbed by the appellant, while juvenile delinquents Vinod Kumar and Vikas were holding him. The statement is contrary to the earliest version given by him to the police, vide statement Ex. PW-9/A, under Section 154 of …10… the Code of Criminal Procedure. According to portion ‘A’ to ‘A’ of Ex. PW-9/A, with which he was duly confronted, it was juvenile delinquent Vinod Kumar, who had given the blow with a Chhura, as disclosed to him by the deceased. Not only this in statement Ex. PW-9/A, he even did not name the present appellant. He stated, per statement Ex. PW- 9/A, that the deceased told that there were three assailants, one of whom Vinod Kumar stabbed him with a dagger and two others held him. According to statement Ex. PW-9/A deceased could disclose the name of only one of the two other boys, namely Vikas, but before he could name the second one, he became unconscious. 18. Rambi Ex. P-1, the alleged weapon of offence, was discovered, pursuant to disclosure statement Ex. PW-7/A (also Ex. DA), made by Vinod Kumar. PW-7 Mast Ram stated that disclosure statement about the weapon of offence was made by the appellant but the record of the disclosure statement Ex. DA falsifies his version. According to Ex. DA, disclosure statement was made not by Sanjay (the appellant) but Vinod Kumar, who, as per the earliest version, Ex. PW-7/A, had given the fatal blow. Investigating Officer, namely PW-14 Inspector Sanjiv Chauhan, stated that statement Ex. PW-7/A was made by Vinod Kumar, juvenile delinquent and that Rambi Ex. P-1 had also been produced by him. …11… 19. Prosecution also seeks to connect the appellant with the crime by reference to the report Ex. PW-14/K of the Chemical Examiner, per which stains of human blood of AB Group were found on pants of the Safari suit Ex. P-3, produced by appellant Sanjay Kumar. Though it is the case of the prosecution that Safari suit Ex. P-3 had been produced by the appellant and the same was taken into possession vide Memo Ex. PW-7/F, in the presence of PW-7 Mast Ram and one Amar Singh, yet Mast Ram, while in the witness-box as PW-7, did not say that Safari suit Ex. P-3 had been produced by the appellant. Only the Investigating Officer of the case, PW-14 Inspector Sanjiv Chauhan stated that Safari suit Ex. P-3 was produced by appellant Sanjay Kumar. However, there is no evidence, worth the name, indicating that Safari suit Ex. P-3, belongs to the appellant or it was worn by him at any point of time, leave alone at the time when the occurrence took place. The so called eye-witnesses, examined by the prosecution, namely PW-3 Vijay Kumar and PW-4 Om Prakash did not say that Safari suit Ex. P-3 was worn by the appellant. 20. In view of what has been discussed, hereinabove, we are of the considered view that the case of the prosecution does not stand established, beyond reasonable doubt. Consequently, the appeal is allowed, judgment of the trial Court, convicting and sentencing the appellant of the offence, under Section 302, read with …12… Section 34 of the Indian Penal Code, is set aside and the appellant is acquitted. He being in jail, serving out the sentence awarded by the trial Court, is ordered to be released, forthwith, in case his detention is not required in any other case. Release warrant be prepared accordingly. ( Surjit Singh ), J August 24, 2009(sd) ( Surinder Singh ), J