IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.11 of 1995 Reserved on February 26.2.2009 Decided on: 4.3.2009 State of H.P …..Appellant. VERSUS Pawan Kumar & others …..Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice V.K.Ahuja, Judge. Whether approved for reporting?1Yes For the Appellant: Mr. Rajesh Mandhotra, Dy.A.G for the appellant For the Respondents: Mr.Vinay Thakur, advocate for respondents Deepak Gupta,Judge This appeal by the State is directed against the judgement of the Learned Additional Sessions Judge, Solan, Camp at Nalagarh in Sessions Trial No.2-NL/7 of 1992 decided on 10.1.1994 whereby he acquitted the accused of having committed offences punishable under Sections 302, 323, 452 read with Section 34 of the Indian Penal Code. 2. Briefly stated the facts of the case are that the three accused Pawan Kumar, Ram Murti and Roop Ram are real 1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes brothers. Roop Ram is married having a wife, five sons and a daughter. His relations with his wife and children are strained. He, therefore, resided with his brothers Ram Murti and Pawan Kumar in their house whereas his wife, sons and daughter continued to reside in his house which is close to the house of his two brothers. There are a number of litigations pending between the accused Roop Ram and his wife and children. The relations between Roop Ram and his wife and children are extremely bitter and acrimonious, so much so that on 17.5.1991 Roop Ram lodged a report with the S.H.O., Police Station, Nalagarh that he apprehended danger to his life at the hands of his sons Bir Singh (deceased) and Kulwant Singh and his wife. 3. PW-1 Promila Devi, wife of deceased Bir Singh lodged the report with the Police at 11.00 A.M. on 20.5.1991. According to her at about 4.45 A.M. when she was sweeping the court-yard of her house, accused Pawan Kumar armed with a ‘Danda’ and accused Ram Murti armed with an ‘axe’ entered her house. Ram Murti caught hold of her mouth and Pawan Kumar caught hold of her arms and started beating her. She cried out. On this, the two accused pushed her and she fell down and her salwar and shirt got torn and she suffered injuries on her arms and back. Then the accused attacked her husband Bir Singh with the danda and the axe due to which he became unconcious. Then her brother-in-law Kulwant Singh who was also sleeping in the verandah on another cot got up and then they attacked Kulwant Singh. Thereafter, they came to the hospital at Nalagarh. Since her husband’s condition was serious, he was referred to PGI, Chandigarh. She in this complaint has also alleged that her father-in-law, accused-Roop Lal was also present and had a danda in his hand and he was inciting the other two accused Pawan Kumar and Ram Murti not to spare any person. Thereafter, Har Lal, Makhan Lal, Bhim Singh, Hari Om etc. came to the spot and brought them to the hospital. On this complaint being lodged, the police started investigating the matter. On completion of the investigation, Challan was filed. The accused were summoned. They were charged with having committed offences punishable under Sections 302, 303, 452, IPC read with Section 34, IPC. The accused pleaded not guilty and claimed trial. After trial, they have been acquitted by the learned Trial Judge. Hence the present appeal. 4. We have heard Sh.Rajesh Mandhotra, learned counsel for the State and Shri Vinay Thakur, learned counsel for the accused. 5. The prosecution has examined a number of witnesses. The evidence of PW-1 Promila Devi, PW-2 Soma Devi, PW-12 Makhan Lal and PW-16 Kulwant Singh are most relevant since these gives an ocular account of the alleged incident. PW-1 Promila Devi repeated what had been stated in the complaint but gave further details. She stated that when she was being beaten and raised an alarm, on hearing her cries, her husband woke up. While he was trying to got up, Pawan Kumar gave three blows of a danda in quick succession and her husband became unconscious. Then her husband’s brother Kulwant Singh also got up and he was dealt a danda blow on his head due to which he became unconscious. Thereafter, Soma Devi came out of the room where she was sleeping and Pawan Kumar gave a blow of the danda on her wrist. Promila Devi also stated that Ram Murti dealt an axe blow to her husband but she could not state as to on which part of the body, the axe blow was given. While Ram Murti and Pawan Kumar were attacking the witness and the other family members, the third accused Roop Ram remained in the court-yard, inciting the other two accused to kill both Bir Singh and Kulwant Singh. Further according to this witness, on hearing her cries, Makhan Lal, Hari Om and Bhim Singh reached the spot and when they challenged the accused, the accused ran away. Thereafter, she, her husband and her husband’s brother Kulwant Singh were brought to the hospital by Makhan Lal etc. where her statement Ex.PA was recorded. Her husband was referred to PGI, Chandigarh where he died. 6. Soma Devi is the sister of deceased Bir Singh and daughter of accused Roop Ram. She was examined as PW-2 and stated that at about 4.45 a.m. when she was sleeping, she woke on hearing the cries coming from outside. She got up and came out and saw Pawan Kumar armed with a danda and Ram Murti armed with an axe. She also saw that her brother Kulwant Singh was bleeding badly from his head. Her father Roop Ram was also standing in the court-yard with a danda in his hand and was inciting his brothers Ram Murti and Pawan Kumar to kill her brothers Bir Singh and Kulwant Singh. She states that when she shouted as to what is going on, the accused Pawan Kumar rushed towards her and gave a blow of the danda on her wrist. In the meantime, Makhan Lal, Hari Om and Bhim Singh came to the spot and on seeing them, the accused ran away. 7. Makhan Lal was examined as PW-12. According to him on 20.5.1991 at about 4.00 a.m., he alongwith his brother Hari Om and cousin Bhim Chand were going to answer the call of nature in the direction of the house of Bhim Singh. When they were near the house of Bir Singh, they heard cries of “Bachao Bachao Maar Diya Maar Diya”. On hearing these cries, he and his companions went to Bir Singh’s house. There they saw that accused Roop Ram was standing in the court-yard and was inciting his brothers Pawan Kumar and Ram Murti to kill Bir Singh’s wife and not to spare her. They also saw that Pawan Kumar and Ram Murti were coming out of the verandah of Bir Singh’s house. According to him, he heard these two witnesses proclaiming that those who had been injured would not survive and those who had escaped, their assault would not be spared the next time. Thereafter, the accused went to the house of Pawan Kumar. He and his companions went into the verandah of the house of Bir Singh and saw that Bir Singh was lying in a pool of blood on a cot. Kulwant Singh was lying on another cot and was bleeding. Bir Singh’s wife Promila Devi was also having some injuries. Soma Devi’s wrist was swollen. He and his companions then arranged a taxi in which Bir Singh, Kulwant Singh, Promila and Soma Devi were taken to the hospital at Nalagarh. 8. PW-16 Kulwant Singh states that on 20.5.1991 he and his brother Bir Singh were sleeping on two separate cots in their thatched structure. At about 4.45 a.m. he heard the cries of Promila Devi. On waking up, he saw his father Roop Ram in the court-yard and accused Ram Murti and Pawan Kumar standing near the cot on which his brother Bir Singh was sleeping. He asked Pawan Kumar and Ram Murti what they were doing there and then Pawan Kumar gave a danda blow on his head and he became unconscious. He only regained consciousness around 7.00 a.m. and found that Hari Om, Makhan Lal and Bhim Chand were near the cot of his brother Bir Singh who was lying unconscious. Then they brought them in a van to Nalagarh hospital. His brother Bhim Singh was referred to PGI where he died. 9. Admittedly the police party visited the spot the same day between 2.00 to 3.00 p.m. Surprisingly, the police party did not find any blood on the cots and beddings or the floor of the verandah where the deceased Bir Singh and his brother PW-16 Kulwant Singh were allegedly asleep and where they were attacked by the accused. Promila Devi in her cross-examination stated that a dari had been spread on the cot on which her husband was sleeping and that her husband had used a rough cotton sheet (Keshi) to cover himself. Both were stained with blood and according to her, the police official who visited the spot had seen these articles. According to her, the dari had been washed even before she reached the village from Nalagarh hospital. She further states that Kulwant Singh’s bed was also stained with blood. Similarly, Soma Devi PW-2 stated that Kulwant Singh’s cot, stained with blood, was lying in the verandah when the police visited the spot. PW-12 Makhan Lal stated that when the police visited the spot, the blood stained cots and the sheets and other clothes were lying in the verandah. Kulwant Singh PW-16 has also stated that he had shown the cot with blood to the police. However, PW-20 Investigating Officer, S.I. Jagan Nath and the then SHO, Police Station, Nalagarh has specifically stated that when he visited the spot, no cot, dari and keshi stained with blood were shown to him. He also did not see any traces of blood on the floor of the verandah. Since he had not seen any blood, the question of taking any blood stained earth or cloth did not arise. 10. There is an apparent contradiction between the statement of the witnesses and the Investigating Officer. The statement of the witnesses are belied by the statement of the Investigating Officer. There is no reason why the Investigating Officer would not have taken into possession the blood stained cots, beddings and earth if actually they had been present on the spot. Shri Rajesh Mandhotra has urged that merely because the police has been lax in the investigation is not a ground to acquit the accused. We are not inclined to accept this argument. This is not a case of negligence. In case the blood stained cot, bedding and earth were there and the police did not take the same into possession, the investigation was totally improper and callous. We cannot believe that an Investigating Officer would not take into possession blood stained items from the spot if they were actually shown to him. It is apparent that the Investigating Officer did not find any blood stained items on the spot. 11. In case there was no blood on the cots and the verandah which should have been there, the only inference which can be drawn is that the incident took place at some other spot. In case the incident had actually taken place in the verandah, the Investigating Officer would have found some traces of blood there. Now the question that arises is why the witnesses have tried to shift the place where the incident actually took place. It appears that the witnesses shifted the site of the incident to hide the very genesis of the occurrence and the manner in which the same occurred. Where an attempt is made by the eye witnesses to shift the place of occurrence grave doubt arises with regard to the veracity of their statements. It is obvious that the witnesses are trying to hide certain facts from the Court. The learned Trial Court was absolutely right in holding that due to this reason, the version given by the eye witnesses cannot be accepted as the truth. 12. There is also unexplained delay in lodging the FIR. According to PW-12 Makhan Lal, at about 5.00 a.m., he had reached the spot. He alongwith injured reached the hospital around 7.00 a.m. Once they had reached the hospital, it was the duty of the doctor to have informed the police. According to Makhan Lal between 7.00 and 7.15 a.m., he accompanied by some villagers went to the police station to lodge the report. According to him, the Munshi was present and he informed Makhan Lal that since the SHO had gone to some other village in connection with the Panchayat Elections, the statement could be recorded only after the return of the SHO. This version cannot be believed. Once the Munshi was informed about the occurrence of a serious offence, he would have noted down the same. Even if a formal FIR had not been recorded, some report would have been recorded in the Rapat Rajnamcha. 13. The statement of Promila Devi, Ex/PA was recorded at about 11.00 a.m., four hours after she had reached the hospital. There is no valid explanation for the delay in recording this statement. Promila Devi has clearly stated that before recording her statement, the police officials made enquiries from the other villagers about the incident. This also indicates that the statement may have been recorded after consulting other persons. 14. There is another infirmity in the prosecution case. According to PW-16 Kulwant Singh when he was in the hospital at Nalagarh on 20.5.1991, the SHO had recorded his statement. Thereafter, he returned to his village alongwith Promila Devi. However, the statement of Kulwant Singh which is on record is dated 21.5.1991. No statement of Kulwant Singh dated 20.5.1991 is available on the record. This lends to the inference that the prosecution withheld the statement dated 20.5.1991 which may have been the earliest recorded version of the case. 15. It also appears that PW-12 Makhan Lal and his companions were cited as eye witnesses after due deliberation and consultation. They do not appear to have actually witnessed the occurrence. Makhan Lal states that he reached the house of Bir Singh and he heard Roop Ram inciting the other accused Ram Murti and Pawan Kumar to kill Bir Singh’s wife. They also heard Pawan Kumar and Ram Murti proclaiming that those who had been given injuries were not going to survive and those who had escaped would not be spared in the future. However, both PW-1 Promila Devi and PW-2 Soma Devi have not made any statement that Roop Ram ever incited Ram Murti and Pawan Kumar to kill Promila Devi. They have also not stated that accused Ram Murti and Pawan Kumar ever made proclamation as stated by Makhan Lal. According to Promila Devi, the accused ran away when they were challenged by Makhan Lal, Hari Om and Bheem Chand. But neither Makhan Lal nor his companions nor Soma Devi have stated so. 16. Another fact which does not lend evidence to the version is that admittedly a few days before this incident, i.e., on 17.5.1991 when the marriage of two sisters of Makhan Lal was being solemnized, the police had come to the spot to arrest Bir Singh and Kulwant Singh on the complaint made by their father accused Roop Ram. There is evidence on record to show that the police officials came to arrest them at the time of the marriage and it was only on the intervention of some senior villagers that they were not arrested. It was, therefore, obvious that Bir Singh and Kulwant Singh may have borne a serious grudge against their father Roop Ram. Accused Ram Murti was also examined by the police on 20.5.1991 and there are injuries on his person. There is no explanation by the prosecution as to how Ram Murti suffered these injuries. This also shows that the eye witnesses are not telling the whole truth. 17. The learned Trial Court has referred to various other contradictions in the statements of the witnesses and the improvements made by them. The witnesses were confronted with their previous statements and it is apparent that during the course of the evidence in Court, these witnesses have made many improvements and changes. The learned Trial Court has by a well reasoned judgment, after analyzing all the evidence, in detail, acquitted the accused. We are in agreement with the reasoning of the learned Trial Court. We have also discussed the evidence in detail, hereinabove. 18. For the reasons given hereinabove, it is not possible to rely on the statement of the eye witnesses. We find no merit in the appeal which is accordingly dismissed. Bail bonds, if any furnished, by the accused are ordered to be discharged. ( Deepak Gupta ) Judge. (V.K.Ahuja) March 4, 2009 Judge (m)