HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No. : 351 of 1992 Reserved on: 3.11.2009 Decided on: 6.1.2010 State of Himachal Pradesh ……… Appellant. Versus Rajinder Singh and others ………Respondents. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the Appellant: Mr.R.M. Bisht, Deputy Advocate General. For respondents No.1 and 2: Mr.Bimal Gupta, Advocate. Per V.K. Ahuja, J.: This is an appeal filed by the State of Himachal Pradesh under Section 378 of the Cr.P.C. against the judgment of the court of learned Sessions Judge, Sirmaur at Nahan, dated 27.1.1992, vide which the respondents were acquitted of the charge framed against them under Sections 302/34 of the Indian Penal Code. Briefly stated the facts of the case are that a report was lodged with the police by PW-5 Ranjit Singh in which he alleged that he learnt that Khem Chand had been given beatings by the respondents with kicks, fists, iron pipes and dandas and the complainant was informed about this ___________________________________________ Whether reporters of local newspapers may be allowed to see the judgment? Yes. fact. He lodged the report with the police and they went to the spot and found Khem Chand lying in injured condition having suffered injuries. The police came in motion and the case was registered. After investigation, the challan was filed before the court of the learned Judicial Magistrate Ist Class, Court No.2, Paonta Sahib, who committed the case to the learned Sessions Judge, who framed charge as against the respondents under Sections 302 read with Section 34 of the IPC and the respondents were tried by the learned trial Court leading to their acquittal. During the course of arguments, we had also considered the question as to whether the arguments could be heard in the absence of respondent No.3, who had not been served and as to whether an amicus curiae or a counsel at State expense should be appointed to represent respondent No.3. To substantiate his plea that no amicus curiae or a counsel at State expense could be appointed to represent respondent No.3 since he was never served, the learned counsel for respondents No.1 and 2 had relied upon the following two decisions. The decision in State versus Ram Gopal and etc., 2006 Cri.L.J. 2805, shows that it was observed by a Division Bench of the Delhi High Court that the State cannot be absolved of its obligation of serving accused in appeal. The appeal was against acquittal. The accused appeared in appeal proceedings and presented himself at stage prior to and after the grant of leave. He had knowledge of appeal but he was keeping himself away. The proceedings for declaring him proclaimed offender could be resorted to. It was held that the court could appoint amicus curiae to represent his interest. The decision in A.Sivanesan versus The State, 1997 Cri.L.J. 598, shows that the notices were served on accused returned unserved. Court appointed amicus curiae for the accused, who represented the accused and was heard on behalf of the accused. The appeal was disposed of on merits reversing the order of acquittal. It was held that it cannot be said that the accused was not represented or not given opportunity of hearing or there was abuse of process of court or non-compliance of Section 385. It was held that no interference under Section 482 was necessary to set aside the order of conviction. It follows from the above discussion that in case the notice had been issued to the respondent/accused and he put in appearance even once, it is clear that he has the knowledge of the appeal filed as against him and in such circumstances an amicus curiae or counsel at State expense can be appointed to represent him. But the essential condition, as observed by the Delhi High Court in the above judgment, is that the accused had the knowledge of the appeal. In that case, the accused had the knowledge since he appeared once in appeal proceedings and, therefore, it was observed that the court can appoint amicus curiae to represent his interest. A perusal of the record in this case shows that the accused was never served in the appeal proceedings before us and the State was given sufficient opportunities to file his correct address and thereafter he was declared proclaimed offender under Section 82 of the Cr.P.C. It is, therefore, clear that there is nothing on the record to show that respondent No.3 was ever served and as such no amicus curiae has been appointed to represent him. Therefore, the appeal shall be heard in the absence of respondent No.3 and it is being disposed of in so far as respondents No.1 and 2 are concerned. We have heard the learned Deputy Advocate General for the appellant and the learned counsel for respondents No.1 and 2 on merits of the case and have gone through the record of the case. The submissions made by the learned Deputy Advocate for the appellant were that four eye witnesses had been examined by the prosecution, whose evidence did not suffer from any infirmity or material contradictions, but the learned trial Court, by taking the minor infirmities in their statements, had wrongly concluded that the guilt of the respondents was not established beyond any reasonable doubt. It was submitted that these findings are not based upon correct appreciation of evidence and there is nothing to suggest that the witnesses had any reason to falsely depose against the accused, who were not also proved to be interested witnesses and as such the findings to the contrary recorded by the learned trial Court are liable to be reversed. On the other hand, the learned counsel for respondents No.1 and 2 had supported the impugned judgment for the reasons recorded by the learned trial Court. In regard to the statements of the prosecution witnesses, it was submitted that there are material contradictions in ocular versions given by the witnesses and the medical evidence and the fact that the statement of the injured was not recorded by the Investigating Officer, though there is nothing to establish that the injured remained unconscious all along or was not fit to make any statement. Thus, it was submitted that all these facts, if taken together, are sufficient to prove that the case of the prosecution was not proved beyond any reasonable doubt and, therefore, the findings of the learned trial Court, in this regard, which have not been proved to be perverse, cannot be set aside. It was also submitted that the court may not agree with the conclusion drawn by the learned trial Court but the conclusion so drawn cannot be said to be perverse so as to call for an interference by this Court. To appreciate the submissions made by the learned counsel for the parties, we have to examine the statements of the principal witnesses and other evidence to reach at a correct conclusion. We will firstly refer to the statements of four eye witnesses examined by the prosecution. The first witness can be said to be PW-5 Ranjit Singh, informant in this case, who had gone to the police station and lodged the report with the police. A perusal of the statement of PW-5 Ranjit Singh shows that he had gone to the Police Station on 4.6.1990 at about 9.30 p.m. and lodged the report with the police Ext.PC. A perusal of this report shows that he had gone to the Police Chowki alongwith Anil Kumar and Om Parkash and informed the police that Anil Kumar had come running to his shop and told that Rajinder, Devinder and Ramesh Kumar were bent upon to kill him. He alleged that all these persons reached his house in order to beat Anil Kumar. The informant Ranjit Singh made them run away from there. Meanwhile, Devi Dayal came to his house and told that those persons had given severe beatings to Khem Chand. He alongwith all these persons came to the shop of Khem Chand and found him crying in pain inside the shop. He enquired from him about the quarrel, but he did not give any convincing reply. He alleged that Khem Chand might have received serious injuries and, therefore, the matter should be investigated and he be medically examined. This Ext.PC is the basis of the case and after recording his statement, the police came in motion and the investigation was conducted by the police. The said Ranjit Singh appeared in the witness box as PW-5 and reiterated the assertions made in the report lodged by him. He reiterated what he alleged in Ext.PC and came up with further statement that after lodging the report, they again went to Khem Chand, who told them that he has been given injuries by all the three accused. Thus, these three accused persons were named by the injured himself in his statement made to PW-5 Ranjit Singh when he had gone there after lodging the report with the police. It is clear from a perusal of his statement that at the first instance, this witness had come to the shop of Khem Chand and found him lying there. The said Khem Chand told them that these beatings were given by the accused persons. This clearly shows that at the first time, either the injured was not fit to make statement or that he had not named the accused having given him beatings, which was stated by him for the first time when the complainant alongwith others again went to him where he was lying. It is not that any treatment had been given to Khem Chand at that time or he had recovered when he made this disclosure to PW-5 Ranjit Singh about the names of the persons, who gave him beatings. From a perusal of the statement of PW-5 Ranjit Singh, some facts emerge, which make his statement doubtful, which cannot be ignored. He had stated that PW Devi Dayal came to him and told that the accused had beaten Khem Chand in his presence, but the words ‘in his presence’ did not find mention in his earlier statement Ext.PC to the police. In cross examination, he clarified that they remained with Khem Chand for 4-5 minutes but he was not unconscious and they went to the Police Post, took 5 minutes in going there and 15 minutes in lodging the report and then when they returned back, they were told the names of the accused persons by Khem Chand himself. His statement, therefore, does not show that Khem Chand was unconscious earlier and, therefore, could not tell about the accused persons or their identity and thereafter, when he went again after 20 minutes, he had named all the three accused persons. His cross examination also shows that when the accused persons came to his house, remained there for about 15-20 minutes, no act of any attempt to beat Anil Kumar or any other act was attributed to them when they remained in his house for this period. He admitted some quarrel in between one Raju from his neighbourhood and the father of the accused and civil litigation as well as a quarrel, when 15 days prior to the occurrence, all the three accused had quarreled with Anil Kumar, which shows that there was some disputes in between the accused persons and Anil Kumar and Anil Kumar was friendly to him, as admitted by him, which leads to the inference that Anil Kumar had some enmity with accused and this witness had a reason to support Anil Kumar. The next witness can be said to be Anil Kumar, PW- 6, who had also signed the report Ext.PC alongwith PW-5 Ranjit Singh, when it was lodged. He admits that he reached the house of Ranjit Singh but had not been given any beating by accused at his place or when they reached at the house of Ranjit Singh. He states that PWs Devi Dayal and Om Parkash came there and told them that all the three accused had given beatings to Khem Chand. In regard to the fact that as to how the beatings were given, whether with any dandas, sticks or with fists and leg blows and how many blows were given, his statement shows that Devi Dayal and Om Parkash only told that all the three accused had given beatings to Khem Chand but there was nothing as to number of blows or weapon used at that time. In case he had been informed about the number of blows or Devi Dayal or Om Parkash had seen them, it was quite natural to have told this witness about the blows. He came up with a plea that some dispute had taken place earlier with the father of an accused and in between him when the father of the accused asked for a loan of Rs.500/- and another dispute when he allegedly sent two boys to his shop asking for fetching of ‘saresh’. It is, therefore, clear from a perusal of the statement of this witness that there is nothing to show that he had witnessed the occurrence, as to how the beatings were given to Khem Chand by each of the accused persons, though he had learnt about the occurrence immediately after some time. He came up with the plea in cross examination that PW-5 Ranjit Singh when made inquiry from the injured, the injured could speak for 1-1/2 minutes and could not speak thereafter and told the name of the accused. Thus, the statement of this witness clearly shows that the injured regained conscious for 1-1/2 minutes only to tell the names of the accused persons. The third witness is PW-7 Devi Dayal, who is alleged to have seen the occurrence from a distance while changing the tyre. The learned trial Court had discussed about the remote possibility of this witness having been able to see the occurrence keeping in view the place where he was changing the tyre and where the occurrence took place. In regard to the occurrence, he simply stated that Khem Chand was brought out of the shop by the accused, who gave him beatings with the weapons they were carrying i.e. sticks, iron pipes and also gave him beatings with fist blows and kick blows. This clearly shows that both the weapons i.e. sticks and iron pipes were used apart from kicks and fist blows, but he did not give the number of any such blows either with the weapons or with fists or legs. He stated that there were 20-25 persons who had witnessed the occurrence. He also stated about a dispute in between Khem Chand and one of the accused when Khem Chand had removed the said accused from his service, who was working as a Cleaner and Driver with Khem Chand. The occurrence had been seen by him allegedly from a distance of 50 feet from the shop of Khem Chand on the opposite side and the possibility that he may have witnessed the occurrence is remote, as observed by the learned trial Court also. He had stated that he had seen the accused bringing out Khem Chand from his shop and he was confronted with his police statement where he did not allege so. He admits that PW Shiv Dayal, son of the deceased, met him, but it is surprising that he did not tell him that he had seen the accused beating his father or he has been beaten earlier. He admits that the accused Ramesh was employed with them as a driver but he is not aware when his services were dispensed which, which clearly shows that he intentionally avoided to give the exact date. The next witness is PW-8 Ram Singh, who saw the occurrence from his house adjoining the Telephone Exchange in front of which the occurrence is alleged to have taken place. He saw the occurrence from his window in the light from the adjoining shops and saw it only for 1-2 minutes. What he observed was that the accused were giving only kick blows while they had weapons in their hands. This is in contradiction to the statement of PW-7 Devi Dayal, who specifically states that the blows were given with weapons being carried by the accused persons. He also does not state for how much time the beatings were given, the number of blows given or over which particular parts of the body or any such detail to prove his presence at the spot. The possibility of his having witnessed the occurrence from quite a distance appears to be remote when there were about 100 persons at the spot and he could see from quite a distance as to the manner in which the blows were given and the length of the pipes being held by one of the accused or dandas which were being held by two of the accused persons. Another witness examined is PW-9 Shiv Dayal, son of the deceased, who stated that Ranjit Singh met him near the Police Post and told that the accused persons had a quarrel with his father. He also came up with the plea that when his father was admitted in the hospital, he regained consciousness and told him that he had been beaten by the accused persons and also told that Rajinder was having an iron pipe while the other two accused were having dandas and they gave him beatings with these weapons, apart from kick blows. He was confronted with his police statement where there was no mention of the beatings given with dandas and iron pipe or that his father had regained consciousness on the next day to his admission in the hospital, which clearly shows that he made major improvements in regard to material facts. Another eye witness, on whose statement the prosecution has also relied upon, is a chance witness, namely, PW-12 Mustaq Mohd. He stated that on 4.6.1990 after the work, he went to the house of his sister and reached at Dhaula Kuan at about 8.15/8.30 p.m. He saw a fight going on at a distance of about 15 feet from the road. He parked his bicycle and saw what was going on. He saw all the three accused persons. He stated that Rajinder was having iron pipe and accused Devinder and Ramesh were having dandas in their hands. He stated that they had made Khem Chand lie on the ground and were hitting him with kicks. He also identified all the three accused persons present in the court. He also came up with the another plea that after the accused persons had beaten Khem Chand, accused Rajinder opened the waist cloth he was wearing and exposed his private parts calling upon the public that if they dare they can come and try to save Khem Chand and he would see it. No other witness has stated in regard to this abnormal behaviour of the accused. This fact was not very material concerning the inflicting of injuries on the person of Khem Chand, but it becomes relevant if all the witnesses had seen the occurrence or not since he had come up with the another version not so stated by any of the other eye witnesses. He further stated that he entered the crowd and placed himself ahead of it to watch the occurrence. He also stated in cross examination that he did not inform any member of the Panchayat or the police about the occurrence, though he volunteered that he told his father about it. He learnt about the fact that the accused have been arrested in the case and the police was investigating it, but he did not go to the police in the month of June to tell as to what he had seen. He stated that the police came to his house and asked him if he had seen the occurrence and he affirmed that he had seen it. He further stated that the police came to his house after 5-6 days from 4.6.1990. There is nothing on the record to show as to when his statement was recorded. There is nothing on the record to show as to how the police learnt that a passer-by like him had seen the occurrence and his statement should be recorded. The learned trial Court had discussed the statement of this witness and observed that his presence at the spot appears to be most improbable. The learned trial Court also gave a reasoning that this witness was free from his job at 5.00 p.m., but to make his presence probable at the spot, he stated to have visited the house of his sister and remained there upto 7.45 p.m. The learned trial Court has also observed that as per this witness, his statement was recorded after 5-6 days of the occurrence, but it was observed from the record that his statement was recorded on 6.8.1990, about two months after the incident. All these facts were observed by the learned trial Court including the fact that this witness had not informed any body i.e. Panchayat or others about having seen the occurrence and had, therefore, not relied upon his testimony and rightly so. According to law, in case the statement of a witness is recorded after a considerable lapse of time and there is nothing on the record to show that he was not available earlier, the statement of such a witness cannot be taken without a doubt. Apart from the above, there are many other infirmities in the case of the prosecution, which cannot be ignored. All along, it has been brought on record that Khem Chand remained unconscious throughout the time till he died on 7.6.1990. The only time he has been stated to be conscious was when PW-5 Ranjit Singh and others stated to have visited him and enquired about the names of the accused which he told them, though he was conscious for only about 2 minutes. The another period during which Khem Chand is stated to have been conscious is when his son PW-9 Shiv Dayal has stated that he was conscious for 1-1/2 minutes on the next day when he was admitted in the hospital, when he told the names of the accused persons and the weapons which they were having. It has been rightly concluded by the learned trial Court on the basis of the submissions made before it that Khem Chand remained unconscious throughout but became conscious only for a few minutes to tell the eye witnesses and his son about the names of the accused persons and this has been rather introduced to prove the case of the prosecution. Another reason why Khem Chand has been shown to be unconscious throughout is that in spite of the fact that he survived for about three days since he died on 7.6.1990 having received injuries on 4.6.1990 at about 9.00 p.m., but there is nothing on the record to show that at any time the Investigating Officer made application to the Medical Officer, obtained opinion in regard to the fitness of the injured to depose or record his statement. It was required of the Investigating Officer to have filed such an application, taken opinion in this regard that the injured was unable to depose and then only it could be concluded that there was justifiable reasons for the prosecution not to record his statement. All this makes the case of the prosecution doubtful. Apart from this, there is another aspect of the case, which cannot be ignored and that is the injures in question on the person of Khem Chand. The learned trial Court had also observed that a doubt is definitely raised whether the injured would have mentioned the presence of the accused as the assailants or not, therefore, the statement of the injured was not recorded. The learned trial Court had also observed that the deceased died due to injuries and