IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.: 16/2001. Reserved on : 31.12.2007 Decided on: 25.2.2008. Sher Singh. … … Appellant. Versus State of H.P. … … Respondent. Coram: The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 . yes For the Appellant: Mr. M.S. Guleria, Advocate. For the Respondent: Mr. Virender Kumar Verma, Addl. Advocate General. Rajiv Sharma, Judge: The accused Sher Singh has filed this appeal against his conviction in Sessions Trial No. 24 of 1999 by learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushahar whereby learned Sessions Judge by judgment of conviction and sentence dated 29.12.2000 has sentenced the accused under sections 325 and 330 of the Indian Penal Code to undergo rigorous imprisonment for 4 years and pay a fine of Rs. 500/- each under sections 325 and 330 of the Indian Penal Code. The accused person was sentenced to undergo rigorous imprisonment for 6 months each under sections 201 and 218 of the Indian Penal Code and in default of payment of fine to undergo Whether reporters of local papers may be allowed to see the judgment? Yes. - 2 - simple imprisonment for 3 months each on each count. The substantive sentence of imprisonment under sections 325, 201, 218 and 330 of the Indian Penal Code were to run concurrently. The accused has filed this appeal challenging the judgment of the Sessions Judge, Kinnaur dated 29.12.2000. The facts in brief are that the appellant-accused Sher Singh was working as SI/SHO, Police Station Ani with effect from March, 1999. Bhim Singh, co-accused was working as MHC, Police Station, Ani since June, 1999. The other accused Balwant Singh had been working as constable in Police Station, Ani since June, 1999. PW-9 Bihari Lal was present in his Dogari (farm house) in village Ghanair under the jurisdiction of Police Station, Ani on 4.6.1999. PW-9 was maintaining a flock of sheep and goats. On 4.6.1999 two strangers had visited PW-9 at his farm house and requested for night shelter. PW-9 declined their request. He returned to his house Dagot in the evening of 4.6.1999. He had locked his Dogari on 4.6.1999. When PW-9 returned to his Dogari on 5.6.1999, he found two lambs missing. PW-26 Sunita Devi was residing at some distance from the cattle shed of PW-9. She had left her house to visit her parents on 10.6.1999 after locking her house. When she came back on 11.6.1999, she found cash amounting to Rs. 10,000/- missing. She had noticed one Sh. Gumat Ram of the nearby area and another person accompanying him loitering in doubtful circumstances near her house on 10.6.1999. She reported the theft of her currency notes vide complaint Ex.PW-26/A. The appellant on 17.6.1999 had sent for PW-26 to look into the veracity of her complaint. She reached the Police Station Ani on 17.6.1999. The appellant directed Sh. Bhumi Singh to depute one constable with Sunita Devi to the market. The constable so deputed was directed to apprehend and bring to the Police Station the suspect - 3 - identified/marked by Smt. Sunita Devi. Sh. Bhumi Singh deputed Sh. Bhup Singh, PW-21, Constable Police Station Ani with PW-26 to the market. PW-21 accompanied PW-26 from the Police Station, Ani to the market. She identified and marked one suspect in market at Ani and consequently PW-21 Sh. Bhup Singh had directed the suspect to accompany him to the Police Station, Ani. He produced the suspect before the appellant on 17.6.1999 at 1.00 P.M. at Police Station, Ani. The appellant interrogated the suspect, who disclosed his name as Tula Ram son of Ganga Ram. The appellant directed PW-26 to send for PW-9 Bihari Lal to Police Station, Ani. PW-26 Smt. Sunita Devi left the Police Station, Ani on 17.6.1999 in the afternoon. She informed PW-9 Bihari Lal at 6.30 P.M. on 17.6.1999 that he was required at the Police Station. PW-9 had sent for his cousin PW-10 Mohinder Singh. PW-9 and PW-10 had left their house and reached the Police Station, Ani at about 8.30 P.M. on 17.6.1999 and reported to the appellant. The appellant informed PW-9 that theft of his two lambs stood proved. PW-9 was directed to identify the suspect taken to the Police Station at the instance of PW-26. PW-9 refused to identify the suspect Tula Ram. The appellant directed PW-9 and PW-10 to arrange for their stay at Ani. They expressed their inability to arrange for suitable accommodation for the night stay at Ani and the appellant directed PW-9 and PW-10 to stay in the Police Station, Ani. They went out to take their meal in the market and also to bring food for suspect Tula Ram. Thereafter PW-9, PW-10 and the suspect were taken to the I.O. room in the ground floor of the Police Station wherein T.V. was also installed. The appellant started violently kicking and slapping the suspect. The suspect was taken to the bath room and was kicked and dragged. The appellant had poured water over the suspect. The appellant had compelled the suspect to drink his urine. The appellant - 4 - brought the suspect to I.O. Room and pronounced that he made the suspect to take his urine. PW-9 and PW-10 had slept together on one cot in the I.O. room and the suspect was directed to sleep on the ground. The police had provided blankets to PW-9, PW-10 and the suspect. PW-9 and PW-10 left the Police Station at about 4.30 A.M. on 18.6.1999 after informing Sh. Bhumi Singh and Sh. Balwant Singh. It is alleged that at about 5.15 A.M. on 18.6.1999 Sh. Balwant Singh got up and went to T.V. room. He found the I.O. room closed from inside. He shouted at the suspect, finding no response from the suspect, Sh. Balwant Singh mounted on wooden scants kept outside and found the suspect having hanged himself to death. Sh. Balwant Singh informed Sh. Bhumi Singh. Sh. Balwant Singh also informed the appellant of the situation. The appellant had posted report No. 28 in daily diary Ex.12/A of the Police Station. As per report No. 28, the appellant stated to have informed PW-1, Sh. V.S. Negi, S.D.M., Ani of the matter at about 5.45 A.M. on 18.6.1999. PW-1 Sh. V.S. Negi had informed the District Magistrate, Mandi of the situation. The District Magistrate had directed the PW-1 to conduct magisterial inquiry into the matter under videography. He reached the Police Station, Ani on 18.6.1999 at 12.30 P.M. In the presence of PW-8 Sh. Chuni Lal and the men accompanying him, Mr. V.S. Negi opened the outer bolt of the I.O. room of Police Station, Ani. PW-2 Sayad Ahmad, Deputy Superintendent of Police also reached the I.O. room when the same was being opened under the direction of PW-1. PW-8 Chuni Lal prepared the video of the I.O. room. The photographs were also taken by PW-8 of the room and the dead body in various postures. PW-1 Mr. V.S.Negi prepared the inquest report Ex.PW-1/A. Mr. Negi sealed the room. The body of the suspect was taken on 19.61999 by PW-1 to Zonal Hospital, Mandi. A team of two doctors had conducted the post- - 5 - mortem of the dead body under videography being conducted by PW- 8. The autopsy was carried out on the dead body of the suspect by PW-18 Dr. N.K. Handa and Dr. Dharmender Kapoor. PW-19 Dr. J.N. Chauhan, M.D. Forensic Medicines was also present when the post mortem examination was being conducted by PW-18. All the three doctors had unanimously furnished the provisional opinion of cause of death due to extensive injuries to spleen as per post-mortem report Ex.PW-18/C. The viscera was sent to the Chemical Examiner. The piece of Niwar was also recovered by the Medical Officers from around the neck of the deceased. The Chemical Examiner in his report Ex.PW-18/E has not found the traces of liquor or poison in the viscera. On receipt of the report Ex.PW-18/B of the Chemical Examiner, doctors namely, Dr. N.K. Handa, Dr. Dharmender Kapoor and Dr. J.N. Chauhan confirmed the provisional opinion of the cause of death. Accordingly PW-2 had found that the appellant had subjected the suspect to third degree method while interrogating him in connection with the theft of PW-9 and PW-26. Accordingly PW-2 had prepared the report Ex.PW-2/A and routed the same to the Police Station for registration of FIR under section 306 of the Indian Penal Code against the appellant. Accordingly, the FIR under section 306 of the Indian Penal Code was registered against the appellant on 19.6.1999 at Police Station, Ani. On receipt of the post-mortem report, the FIR registered under section 306 of the Indian Penal Code was converted under section 302 of the Indian Penal Code. PW-28 Ravinder Singh, Deputy Superintendent of Police carried out the investigation under the direction of DIG, Central Range, Mandi of crime under section 302 IPC registered against the appellant vide FIR No. 30/99. PW-28 has found that after the death of suspect, the appellant had fabricated the daily diary Ex.PW-23/A and Ex.PW-23/B of 17.6.1999 and 18.6.1999 to - 6 - save himself from the charges of murder. The appellant, co-accused Bhumi Singh and Balwant Singh had hanged the dead body at about 5-6 A.M. on 18.6.1999 and started proclaiming that suspect had committed suicide. The appellant had directed PW-23 Smt. Surajmani, MC to up date the daily diary of Police Station Ani of 17.6.1999 and 18.6.1999 on 18.6.1999. PW-28 has arrested the appellant on 22.6.1999 and the other co-accused persons, namely, Bhumi Singh and Balwant Singh were also arrested. After the completion of investigation, SHO, Police Station, Ani prepared the final report under section 173 of the Code of Criminal Procedure against the appellant and co-accused. The learned Sub Divisional Judicial Magistrate, Ani vide order dated 15.10.1999 committed the appellant to stand trial under section 302, 201,218,330 348 and 34 of the Indian Penal Code to the Court of Sessions. The charges were framed vide order dated 31.5.2000 under sections 302, 201, 348/34 of the Indian Penal Code against the appellant as well as under sections 218 and 330 of the Indian Penal Code. The prosecution examined 29 witnesses. The appellant was examined under section 313 of the Code of Criminal Procedure. He pleaded not guilty. He denied having used third degree method while interrogating the suspect on 17.6.1999. The learned Sessions Judge convicted and sentenced the appellant as stated above. The appellant-accused is in appeal. Mr. M.S. Guleria, Advocate appearing on behalf of the appellant had submitted that the trial court misconstrued and misinterpreted the evidence and the prosecution has miserably failed to bring home the charges. There are unexplained gaps in the prosecution story which is highly improbable. There is no legal evidence for proving the guilt of the accused. - 7 - Mr. Virender Kumar Verma, the Additional Advocate General has supported the impugned judgment and had submitted that the prosecution has proved the case against the appellant. He has relied upon statements of PW-1, PW-2, PW-9, PW-10, PW-18, PW-21 as well as PW-23 and the opinion given by the doctors who had conducted the autopsy read with report of Chemical Examiner. I have heard the learned counsel for the parties and perused the record carefully. PW-1 is Sh. V.S. Negi. He was posted as Sub Divisional Officer, Ani since January, 1999. He has conducted the magisterial inquiry into the death of suspect Tula Ram in the police custody. The PW-1 has opened the bolt and got the videography conducted by PW- 8 Shri Chuni Lal (PW-8). He also directed Sh. Chuni Lal to take photograph of the dead body of the suspect Tula Ram. He has noticed injuries between the upper side of the stomach and below the chest of the suspect and also noticed that blood was oozing out of those injuries. He has also noticed other injury marks on the body of Tula Ram. He got the post-mortem conducted from the team of three doctors. He had also prepared the inquest report Ex.PW-1/A. PW-2 is Sh. Sayad Ahmad, who was posted as Deputy Superintendent of Police at the relevant time. He has categorically stated that he noticed blue marks on the body of the deceased. He has sent report Ex.PW-2/A. PW-3 Sh. Anup Kumar is a formal witness and was produced by the prosecution to prove the posting orders of the staff, which was posted at the relevant time in the Police Station, Ani. PW-4 is Sh. Roshan Lal and was working as LHC at Police Station, Ani since 1997. He has deposited the samples with the Chemical Examiner. PW-5 is Shri Rattan Chand, who was working as Head Constable in the Police Station, Ani since June, 1998. He has - 8 - deposited 5 sealed samples with the Chemical Examiner. PW-6 is Shri Atma Ram, who was present at the time of recovery of danda Ex.P-104 and has signed the recovery memo Ex.PW-6/B on 26.6.1999. PW-7 is Sh. Kumbh Dass, who was working as MHC in Police Station, Ani since 1st July, 1999. He has recovered the Charpai (cot) Ex.P-105. PW-8 Sh. Chuni Lal has photographed the I.O. room and has taken the pictures of the body of the suspect Tula Ram. He has handed over the photographs to the police after two days. He was also present at the time of autopsy being carried out on the body of Sh. Tula Ram. PW-9 Sh. Bihari Lal has supported the prosecution case to the hilt. He has categorically stated in his examination-in-chief that the appellant had started giving beatings to the suspect by slapping and kicking him. He has further stated that the suspect had fallen towards the bath room and thereafter the appellant brought the suspect in the room where he was watching T.V. The appellant had told PW-9 that he has made the suspect to take his own urine. PW-10 is Mohinder Singh. He has supported the prosecution case. He has stated that the appellant slapped the suspect and thereafter the hairs of the suspect were also pulled by the appellant and he was thrown on the floor. The suspect was taken to the bath room and his clothes were drenched. The appellant thereafter brought the suspect to the T.V. Room. PW-10 has further stated in his examination-in-chief that the suspect had complained of the pain below his chest. He has reiterated in his cross- examination that the appellant had given beatings to the suspect in T.V. room in his presence. PW-11 Sh. Sham Lal was working as constable in the office of SDPO/Deputy Superintendent of Police and he had handed over 6 sealed parcels and 10 vials to the Finger Print Bureau, Phillaur and Laboratory Chemical Examiner as per directions - 9 - of the Sub Divisional Magistrate. PW-12 Paras Ram is also a formal witness. PW-13 Raj Kumar was working as a Patwari and has prepared the map Ex.PW-13/A. PW-14 is Sh. Jai Kumar Sharma. He has prepared the map of the building vide Ex.PW-14/B. PW-15 Kuber Dutt is also a formal witness. PW-16 ASI Bodh Raj has stated that the appellant has sent the daily status report on 18.6.1999 at 10.00 A.M. in the morning and the same was conveyed to the office of Superintendent of Police at 10.15 A.M. PW-17 is Ram Lal. He had been working in Police Station, Ani as constable since 22.5.1999. He has stated that the appellant has told him to have a look at the suspect, who was kept in the T.V. room. He had left the Police Station at 6.45 in the evening of 17.6.1999 and had come back on 18.6.1999 to collect his glasses. PW-18 is Dr. N.K. Handa, who has conducted the post-mortem. The following observations were made in the post-mortem report Ex.PW-18/C: “EXTERNAL APPEARANCE. He was average built, body of male adult having ligature material in the neck (Newar) and he was wearing one cremish synthetic half sleeves shirt with bluish print stained with clotted blood at places. One terricot pant light chocolate colour with vertical grayish strips smeared with faecal matter at places. Eyes were closed. Mouth partially open, tongue lying in the mouth. No frothing or saliva at angle of mouth. Both thighs, lower part of abdomen and inguine scrotal region smeared with faecal matter and post mortem staining present on dependant part of the body. 1. There were pattern contusions present on outer aspect of right thigh three in number bluish in colour, sizes and shapes were drawn in diagram in the post-mortem report. The pattern contusions as shown in diagrams were described as follows: - 10 - i) It was 3 inch in length, one inch wide oblically placed on outer and front aspect of thigh situated 5 inches below right anterior superior iliac spine. ii) It was 2 ½ inch in length, one inch in width vertically placed below contusion No.1. iii) It was situated on outer and front aspect of thigh below contusion No.2. It was 2 ½ inch in length and 2 inch in width. 2. There were pattern contusions two in number on anterior aspect of left thigh oblically placed bluish in colour. Dimensions as drawn in diagram No.2 are described as follows: i) It was 4 inches in length, 1 inch wide oblically placed above downward and outward. It was situated 3 inches below mid integument. ii) It was 2 inches in length, one inch in width parallelly placed to contusion No.1, 2 inch below. 3. There was irregular contusion present on the lateral (outer) aspect of right gluteal region (hip). It was bluish in colour. 4. There were multiple grazed abrasions and contusions over upper part of abdomen between umbilicus and xiphistermum mostly confined to left side of abdomen. They were variable in sizes and shapes. In various direction crossing each other. They were bluish in colour. There was underlying contusion in the abdominal wall corresponding to the abrasion. In between these abrasions and contusions there were two lacerated wounds 2 to 3 cm. in length with irregular margin with clotted blood over the wound. These lacerated wounds were confined to left side of abdomen on upper and outer aspect as shown in the diagram No.4. 5.There was greenish discolouration of skin of the abdomen, lower and outer aspect eary sign of putrifaction. 6. There were multiple small irregular lacerations with rogged margins on both side of chest wall more confined to left side of chest on lower and outer aspect. 7. Rigor mortis was absent in all the limbs. - 11 - MARKS OF LIGATURE ON NECK AND DISECTION ETC. There was a ligature material (Newar) around the neck, situated between thyroid cartilage (adm’s apple) and chin. There was a running knot situated on right side of the neck. The ligature material (Newar) was 97 cm. in length and 6 cm. in width upto knot. There was a ligature mark, 1 ½ cm. in width, situated between thyroid cartilage (Adm’s apple) and chin, encircling whole of the neck in front upto both mastoid process. It was pale brownish in colour, surface was soft. There was no evidence of any abrasion and ecchymosis, around over and above the ligature mark. After removing skin, the sub cutaneous tissue was normal, no injury to neck muscles i.e. sternoclido mastoid and platysma. Neck vessles were normal and empty except right jugular vein. Cricoid Cartilage, thyroid cartilage and hyoid bone were normal. Trachea and larynx were normal. CRANIUM AND SPINAL CORD Scalp was normal. Skull and vertebrae were normal. Membranes and brain was normal. Spinal cord was normal. THORAX 1. Walls, ribs and cartilages bearing injuries is already described. Ribs and cartilages were normal. Larynx and trachea were normal. Right and left lung were normal. Pericardium, heart and large vessel were normal and empty. ABDOMEN 1. Walls: Injuries present on the abdominal wall already described. There was greenish discolouration of abdominal wall, lower part and flanks. Abdomen wall slightly distended. 2. Peritoneum: Foul smelling gases were emitted while opening peritoneal cavity, peritoneum normal and smeared with blood at places. There was blood in peritoneal cavity more on left side. 3. Mouth, Pharynx and Oesaphogus were empty and normal. 4. Stomach and its contents were empty and normal. - 12 - 5. Small intestines and their contents: distended with greenish discolouration fat places, filled with foul smell gases and small digested food material places. 6. Large intestines and their contents: It was normal. 7. Liver was normal. 8. Spleen was ruptured, grossly lacerated, laceration extending from upper border through and through to lower border. 9. Kidneys were normal. 10. Bladder was empty and normal. 11. Organ of generation both external and internal were normal. MUSCLES BONES AND JOINTS. There was no fractured dislocation.” PW-18 Dr. N.K. Handa and Dr. Dhamendar have given the following opinion as per the post mortem report before the report of the Chemical Analyst which reads thus: “In our opinion the probable cause of death was due to haemorrhagic shock resulting from rupture of spleen. However, the final opinion was kept pending for want of chemical analysis report of viscera and blood which was received later on.” On receipt of the report of the Chemical Examiner Ex.PW-18/B, the team of doctors comprising of PW-18 and Dr. Dharamender Kapoor had given the following final opinion: “The deceased died of haemorrhagic shock resulting from rupture of spleen.” In his cross-examination PW-18, Dr. N.K. Handa has specifically stated that he found injuries in the area of stomach of the deceased corresponding to the abrasion. He has further stated that the injuries recorded by him in upper left side of the abdomen and lower part of chest were corresponding to spleen. The SHO has sought clarification - 13 - from PW-18 vide Ex.PW-18/E. Dr. N.K. Handa has given the following clarification vide Ex.PW-18/D which reads thus: “1. Most of the injuries can be caused by a stick (Danda). 2. Kindly mention the specific injury given in PM report, which is likely to be caused by broken glass bottle. 3. Injuries present on the body of deceased were ante mortem in nature. 4. Query raised is already described under column 1 and 2. 5. There are multiple injuries present on the body of deceased. Kindly specify the injury to which time duration is required.” PW-19 Dr. J.N. Chauhan was also present at the time when the autopsy was conducted by a team comprising of Dr. Dharmender Kapoor and PW-18. He has specifically stated in his examination in chief that the ligature present on the neck of deceased appeared to be post-mortem in nature that is having been caused after the death. The SHO had sought additional clarification from PW-19 vide Ex.PW- 19/A. The additional clarification was given by PW-19 vide Ex.PW- 19/B. He has specifically stated in his additional clarification that “it appears that deceased has been hanged after death.” He has reiterated in his additional clarification also that the final cause of death in the case remained the same i.e. haemorrhagic shock due to rupture of spleen. PW-20 Sh. M.C. Joshi is the Assistant Government Examiner of Questioned Documents. He has reached the conclusion as per his opinion Ex.PW-20/C that the signatures on the red enclosure portion stamped and marked Q-1 to Q-3, A-1 and S1 to S-8 had been written by one and the same person. PW-21 is Sh. Bhup Singh, who has categorically stated that the appellant was interrogating the suspect and while doing so, he was beatng him. He has further stated that the - 14 - suspect was crying hai hai. Further he has stated in his cross- examination that he has not seen personally the appellant giving beating to the suspect since he was in the adjoining room, but could hear every thing. PW-22 is Sh. Rajesh Tomar, SDJM, Ani before whom statements of Sh. Bihari Lal (PW-9), Sh. Mahinder Singh (PW-10), Sh. Bhup Singh (PW-21) and Sh. Tilak Raj (PW-29) were recorded under section 164 of the Code of Criminal Procedure.