IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal Nos. 444/2007 and 449/2007 Judgment reserved on 20.11.2009 Date of decision: 26.11. 2009 Cr.A No. 444/2007. Mohammad Nazir …Appellant versus State of H.P. …..respondent Cr.A No. 449/2007. Hasmat Bibi & others …..Appellants 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 Appellants: Mr. Vinay Thakur, Advocate for the appellant in Cr.A No. 449/2007. Mr. Vinod Thakur, Advocate for the appellant in Cr.A No. 444/2007. For the respondents : Mr. Ramesh Thakur, Assistant Advocate General. Surinder Singh, J. The above titled appeals are arising from the judgment of conviction passed by the learned Additional Sessions 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. yes - 2 - Judge, in a Sessions trial decided on 25th September, 2007, whereby the appellants were sentenced under Section 302 read with Section 34 Indian Penal Code for committing the murder of one Gafur Mohammad. The prosecution case, as emerges from the prosecution evidence can be summed up thus. Appellant Hasmat Bibi was the wife of Gafur Mohammad (deceased). They had four daughters, namely, Bal-Kisha Bibi (co-appellant) and Khurshida, PW-1 Mukhtiar Bibi and PW3 Bholan Bibi and a son PW5 Likayat Ali. Bal-Kisha Bibi was married to appellant Sardar Deen. PW5 Likayat Ali was married but was residing separately whereas unmarried daughters,namely, Bholan Bibi and PW1 Mukhtia Bibi at that time were residing with their parents. Appellant Hasmat Bibi used to take her daughter PW3 Bholan Bibi to an exorcist appellant Mohammad Nazir to which her deceased father used to object. This caused frequent quarrels and tension in the - 3 - family. However, after the quarrels, some compromise used to be effected. Hasmat Bibi wanted Bholan Bibi to marry with the nephew of appellant Mohhamad Nazir alias Chinda but the deceased did not agree and put her off on one pretext or the other. Therefore, Hasmat Bibi was annoyed. Deceased was also quite angry with Bholan Bibi for visiting the exorcist with her mother for alleged treatment. Thus PW3 Bholan Bibi left the house of her parents and started residing in the house of her married sister Bal-Kisha and her husband appellant Sardar Deen On 17th July, 2006 at about 9.40 a.m., A.S.I. Chain Singh informed PW12 Inspector Ambiya Ram, Police Station, Indora about a telephonic information having been received that Gafur Mohammad had been murdered by some unknown persons and this information was incorporated in the daily-diary Ext. PW12-A. Thereafter he proceeded to the spot along with ASI Harpal Singh, HHC Rachpal and lady Constable Sandeep Kaur in the official vehicle. On reaching the spot, he recorded the statement Ext. PW5/A of PW5 - 4 - Likayat Ali under Section 154 of the Code of Criminal Procedure who had just returned from the house of his in-laws where he had gone a day earlier. He was informed by Tej Singh son of Prem Singh telephonically that his father had been murdered. On this information, he rushed to his village and found the dead body of his father lying in the compound of the house, having bleeding injuries caused by dandas and daratis. Clothes which were worn by his father were allegedly changed. There was blood all over the compound and the broken bangles were also lying on the floor. The cot was smeared with blood. PW5 suspected the appellants in causing the murder of his father. After recording the statement of PW5 Liyakat Ali, PW12 Ambiya Ram sent ruka Ext. PW12-B for the registration of the case on the basis of which FIR Ext. PW9/A was registered under the aforesaid Sections. Photographs Ext. PW4/1 to Ext. PW4/16 of the dead body were taken. Site plan Ext. PW12/C was prepared and the Police also took into possession one - 5 - bangle each from Bholan Bibi and Mukhtiar Bibi to which they were wearing, vide memo Ext. PW1/A. They also took into possession the broken bangles Ext.P3 from the spot vide memo Ext. PW2/A, and were sealed. The Salwar Ext. P14, Shirt Ext. P15 and Dupatta Ext. P16 under lying the cot of the deceased were also sealed and taken into possession vide memo Ext. PW2/C. Darat Ext. P10, Darati Ext. P11 dandas Ext. P5 and Ext. P6, which were stated to be blood stained, lying outside the house of the deceased, Shirt Ext. P7, Pajama Ext. P8 Parna (Piece of clothe) Ext. P9 were also taken into possession by the police. The inquest papers Ext. PW8/B and Ext. PW8/C were prepared by S.I. Ambiya Ram (PW12) in the presence of witnesses Surinder Singh and PW7 Jakir Hussain. Dead body was sent for the autopsy to Civil Hospital Nurpur. PW8 Dr. Suman Sexena on the request of the police made vide application Ext. PW8/A, conducted the postmortem of the dead body. The doctor - 6 - noticed the following injuries on the dead body:- 1. Lecerated wound 2 cmx 1cm over middle of the forehead. 2. lacerated wound (cut through wound) 5cm long over rightear pinna. 3. There waws haemomatoma over right mandibular angle with fracture of underlying bone. 4. There was fracture of right paretal bone posteriorly. 5. Clotted blood was present. Nostrils, mouth and ear cavities. There were about 21 brusies over Chest abdomen and thighs varying in sizes from 3 cm to 3cm and 15 to 17 cm in some bruises healthy skin was seen in the middle of the would. All wound were antemortem in nature. On opening skull meninges and brain tissue were found torned below fractured right parital bone. In the opinion of the doctor, the cause of death was shock and haemorrhage due to head injury and other associated injuries. Probable time between the injury and the death was instantaneous within three hours and between the postmortem was within 12 to 16 hours. To this effect the doctor issued postmortem report Ext. PW8/D. - 7 - The police sought the opinion whether the weapons in question could cause the injuries found on the dead body. The doctor (PW8) opined that it could be possible by these weapons and gave the opinion in writing (Ext. PW8/F). Police recorded the statements of the witnesses and arrested the appellants. Weapons of offence were recovered from the spot, blood stains were taken from the place of incident. The clothes of the deceased and that of appellant Hasmat Bibi were sent for the forensic examination. The clothes of the deceased were having human blood of group-B. Human blood was found on the shirt of Hasmat Bibi but its group could not be ascertained, whereas no blood stains were found on the salwar and shirt of Hasmat Bibi and weapons (darat and darati) recovered from the spot. The challan was presented in the court against the appellants. The learned trial Court charge-sheeted the appellants for the offences aforesaid, but they abjured the guilt and claimed trial. - 8 - To prove its case, prosecution examined its witnesses and appellants were also examined under Section 313 of the Code of Criminal Procedure. Appellants pleaded their innocence and took-up the stand that they were falsely implicated in this case and the witnesses had deposed against them under the pressure of the police as they were also illegally detained by the police for the murder of the deceased. Further, they stated that the deceased and his wife Hasmat Bibi took their meals around 9 p.m. Thereafter they went to sleep to their room. When Hasmat Bibi got up in the morning, she found her husband lying dead in the court-yard of the house, having bleeding injuries on the dead body. She started weeping bitterly and asked her daughter PW1 Mukhtiar Bibi to inform Fakrudeen, Pradhan of the Panchayat that some unknown persons had done her husband to death. Fakrudeen visited the spot. He saw dead body and informed the police telephonically. On having been informed about the murder of Gafur Mohammad, his daughters Bal-Kisha Bibi, Bholan Bibi and - 9 - Sardar Deen came soon to the spot and another appellant Mohammad Nazir alias Chhinda was brought around 1.30 p.m. by the police. Police also took away the appellants and Bholan Bibi along with them. The appellants when asked to enter into their defense, they examined DW-1 Som Raj, Criminal Ahlmad about the receipt of FIR by the Magistrate. He stated that the FIR Ext. PW9/A in this case was received on 17th July, 2006 at 11.45 p.m. at the residence of Additional Chief Judicial Magistrate, Nurpur. He further stated that the distance between the Police Station and the village of the deceased is merely 6/7 kilometers, whereas Police Station, Indora is situated at a distance of about 500 meters from the residence of learned Additional Chief Judicial Magistrate and from Indora to Nurpur, the distance can be covered within two hours if the journey is undertaken by Bus and by personal vehicle it takes lesser time. Learned trial Court did not believe the defense version, however relied the statements of eye witnesses, - 10 - thus convicted and sentenced the appellants, as aforesaid, which is under challenge. We have heard the learned counsel for the parties and carefully reappraised the evidence on record. Prosecution case mainly hinges upon the statements of alleged eye witnesses, namely, PW1 Mukhtiar Bibi, PW6 Chhaju and PW7 Jakir Hussain, besides the statements of PW5 Liyakat Ali and PW3 Bholan Bibi. PW1 Mukhtiar Bibi, youngest daughter of the deceased stated that when she was in the house along with her parents, her sister Bal-Kisha, her husband Sardar Deen and Mohmmad Nazir alias Chhinda entered their house and started giving beatings to her father with dandas. She tried to save her father and cried for help but the appellants also threatened her to be beaten in the same manner like her father. She further stated that her mother Hasmat Bibi was carrying danda in her hand, Sardar Deen was having a darat and Mohammad Nazir was carrying a darati in his hand and they killed her - 11 - father by these weapons. When her father died, his clothes were changed by her mother and were kept in the Court-yard. Thereafter, her mother also changed her clothes and kept inside the cow-shed. Thereafter she told her to call Fakrudeen and told him that her father had suffered an attack. When Sardar Deen came over there he saw the dead body of her father and thereafter he called the police. When police arrived at the spot, she as well as her sister Bholan Bibi handed over their one bangles each to the police to which they were wearing. The bangle which pertained to her was blue and read in colour (Ext. P-1) and the bangle of Bholan was green which were taken into possession vide memo Ext. PW1-A. She identified the aforesaid bangles. In her cross-examination, she stated that police reached their house around 10 a.m. whereas her brother Liyakat Ali returned from the house of her in-laws and reached the spot around 1 p.m. by that time, the police had already inquired from her about the alleged incident. She also stated that PW7 Jakir - 12 - Hussain was also present when police reached at the spot, even he was also inquired by the police about the incident. When she called Fakrudeen, Pradhan of the Panchayat to her house, whole occurrence was also narrated to him. The same incident was revealed by her to the police when it reached the spot. She further stated that whenever she had disclosed to Fakrudeen, he further informed the police telephonically. She further stated that before arrival of the police on the spot, one Laldeen had also reached there. She also stated that on 16th July, 2006 her sister Bal-kisha along with her husband Sardar Deen and Mohammad Nazeer had come to their house and she saw all those persons when she got up in the morning, which means all of them, were already present on 16th July, 2006 in the house of the deceased. When confronted with her statement Ext. PW12/B, this fact did not find mention therein. During the trial of the case, PW1 aforesaid considerably improved her earlier version recorded under Section 161 of the Code of Criminal Procedure materially. The - 13 - fact that her sister Bal-kisha was not having anything in her hand whereas her mother was holding danda and other persons were having darat and daratis, as stated above and they started giving blows with the aforesaid weapons also did not find mention in the said statement when confronted therewith. She (PW1) stated that every part of body of her father was hit by the appellants with the weapons to which they were holding and the injuries started bleeding. This was also not found recorded in her statement aforesaid. She stated that when she heard the cries of her father, she came out of her room for his rescue and she tried to save her father about 10 minutes but surprisingly, according to her, not even a single drop of blood fell on her clothes from the injuries of her father. She further stated that she had a scuffle with the assailants and this fact was disclosed to the police but this also did not find mention in the statement under Section 161 of the Code of Criminal Procedure. There was also no reference therein about the threatening by the appellants. She also stated that when the - 14 - police had arrived there, her statement was recorded by them at about 11.38 a.m. She stated that she told Fakrudeen that some one had killed her father. The above statement of PW1, the alleged eye witness if seen as a whole, does not inspire confidence. Further, PW6 Chhaju son of Mohammad Deen stated that during the intervening night of 16th /17th July, 2006, he was watering the paddy fields along with one Balwant. Around 4.30 a.m. PW7 Jakir Hussain came to him and informed him that his brother-in-law Gafur Mohammad had been killed. On hearing this, he rushed to the spot and found the family members of the deceased appellants Hasmat Bibi, and Sardar Deen running towards the fields adjoining to the house of the deceased whereas the dead body of Gafur Mohammad was lying in the court-yard, which was covered by Balwant Singh with a clothe. There were bleeding injuries on the dead body of the deceased. In his cross-examination, he stated that police reached the spot around 7.30 a.m. and remained on the spot till 8.30 - 15 - a.m. He further stated that when he reached the spot after getting the information of murder of the deceased, he saw Mukhtiar Bibi (PW1) present there but Bholan Bibi (PW3) was not present, who was brought to the spot after about one and a half an hour and he himself remained at the spot during the time police remained there. He further stated that no inquiry from him was held by the police but he was called on the next day to the police Station. Had the above version been true, he would have reported the matter to the police immediately on their arrival. He further stated that on 17th July,2006 neither he was asked by the police nor his statement was recorded. PW7 Jakir Hussain and Balwant Singh also did not make any statement to the police but all of them were called next day, i.e, 18th July, 2006 to the Police Station. He further stated that there were many houses of their community in the vicinity but nobody came from the adjoining houses to the spot. He also stated that his land is situated about one kilometer away from the house of the deceased. But according to him, he was - 16 - watering the land of Balwant Singh when he was informed about the murder of deceased. This place was situated at a distance of 200 meters away from the house of the deceased. He further stated that he had gone only at that day to irrigate the land of Balwant Singh. However, he was a frequent visitors to his house. On 18th July, 2006 he along with Balwant Singh and Jakir Hussain visited the Police Station as all of them were summoned by the Police. He admitted that during the time aforesaid, he had been residing in Kandrori which is at a distance of 12 kilometers from the place of occurrence. According to him, he used to visit village Mandh frequently. He admitted that deceased was related to him as his brother-in-law. As is evident from the statement of Bholan Bibi, he was first to reach the spot on getting the information aforesaid. But except PW1 Mukhtiar Bibi, no one was stated to be present there even the other appellants who were present had fled away, as stated by him. He further stated that PW3 Bholan Bibi was also not - 17 - there but she was called after about one and a half hours after his arrival. Significantly, PW1 Mukhtiar Bibi did not whisper even a single word with respect to the presence of PW6 Chhaju or even PW7 Jakir Hussain whose testimony is being discussed hereinafter. PW3 Bholan Bibi stated that her sister Bal-Kisha left the house one day earlier to her husband Sardar Deen on the pretext that she was going to the house of Mohammad Nazir. Appellant Sardar Deen remained at home but on the next morning, her sister Mukhtiar Bibi PW1 came to the house of Bal-Kisha and told her that her father had died and she along with her came to her parental house and found dandas, darati and darat, broken pieces of bangles scattered in the court-yard. It is also pertinent to note that Mukhtiar Bibi did not say anything about visiting the house of Sardar Deen and informing Bholan Bibi. Even Bholan Bibi did not state anything about presence of PW6 Chhaju and PW7 Jakir Hussain at the relevant time when she reached in the parental house. - 18 - In her cross-examination, she (PW3) admitted that Mukhtiar Bibi did not disclose that her father suffered an attack by assailants or that he was killed by the appellants. But according to her, she disclosed this fact lateron. When confronted with her statement Ext. PW12/Q, this important fact also did not find mention therein. She further stated that her sister PW1 Mukhtiar Bibi was also subject to the inquiry by the police in this case and the Police during the course of inquiry did not take down anything. She also stated that although her brother used to be present in the Police Station but she did not know whether he was also subject to the inquiry. PW7 Jakir Hussain stated that on 16th July, 2006, he was performing the duty of guarding the crop from the wild and stray animals of the villagers in rotation. According to him, there are eight houses in their village and he was performing the duty during the night of 16th July, 2006. Next morning around 3-4 a.m., he was driving stray animals from the fields. Said animals were creating - 19 - noise, with the help of torch light, he saw that in the court-yard, the deceased was forced to lie down on the ground by the appellants. They were giving beatings to the deceased with dandas and sickles in their hands. He also stated that the said assailants were taken by surprise by noting his presence. Then all of them ran towards him but he escaped in the dark for his safety and also raised hue and cries. He got himself concealed in the fields. Thereafter he found Balwant Singh and Chhaju (PW6) coming towards him and disclosed this fact to them. Thereafter, all of them came towards the house of deceased to find out as to what had happened. On the way, they saw the appellant Bal Kisha and Chhinda appellants running towards village Sudhwana. Sardar Deen ran towards the fields. It is pertinent to note that PW6 Chhaju did not testify in the court that PW7 Jakir Hussain had also met him and Balwant Singh and he saw the appellants running. PW7 also stated that all of them saw the dead body of the deceased lying in - 20 - the court-yard covered with clothe with injuries all over his body. In his cross-examination, he stated that the police recorded his statement on the next day of their arrival on the spot. He also stated that he along with Chhaju and Balwant Singh had gone to the Police Station. He admitted that when the Police was on the spot, they remained there during the whole day. Surprisingly, Police did not inquire anything from him nor did he disclose of his own anything to them. He further stated that even after 18th July, 2006, he was called almost thrice to the Police Station and Police continued inquiring from him the whole day. He admitted that Mukhtiar Bibi (PW1) and Bholan Bibi (PW3) were also kept by the Police in the Police Station including Liyakat Ali. He stated that PW6 Chhaju was also called by the Police for about 5-7 days. PW7 Jakir Hussain stated that there was a roster maintained for the duty to watch the wild animals by one Suresh Kumar of their village but no such type of Register was ever produced to the Police or during the trial of the case. - 21 - According to him, he had disclosed to the police about seeing the incident with the help of torch light but when confronted with his statement Ext. PW5/R, it did not find mention therein. At the time when PW5 Liyakat Ali had arrived at the spot, Police was already present there. His sister Mukhtiar Bibi along with Jakir Hussain, Chhaju and Balwant Singh were also present there. PW5 stated that the Police was inquiring the matter from these persons. But when he reached there, Police also started inquiring from him. He started weeping on seeing the dead body. He saw the broken bangles scattered on the spot in the open space. He also stated that he was called to the Police Station number of times within a period of ten days. Whenever he used to visit the Police Station, many times, he had seen PW1, PW3, PW6 and PW7 present there. He admitted that PW3 Bholan Bibi and Mukhtiar Bibi were also kept by the Police in the Police Station for about five days. On the critical examination and on reappraisal of the aforesaid evidence, we - 22 - find that some of the important and unexplained facts have come to the fore which makes the narration of the aforesaid witnesses quite unreliable and the prosecution case a suspect. Firstly; PW1 Mukhtiar Bibi, who was present in the house along with her parents and having witnessed the alleged incident, was herself under the scanner of the Police for her involvement for causing the death of her father. She was interrogated by the Police and remained in the Police custody for about five days, as stated by prosecution witnesses referred above. Secondly; PW1 did not say about the presence of PW6 Chhaju Ram and PW7 Jakir Hussain. Thirdly; PW7 Jakir Hussain was very much available to the Police at the time of preparing the inquest. He has signed the inquest papers as a witness. On the scrutiny of the record, we also find that his statement was not recorded by the Police on the same day nor the said witness disclosed anything to the Police on their arrival about the incident as disclosed by him during the trial. Fourthly; PW6 Chhaju was also available on - 23 - the same day on the spot on the arrival of Police. Even we do not find that his statement was recorded