IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.A No.170 of 2006 Decided on : September 14, 2009 Arvind Kumar and another …Appellants. 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 Appellants : Mr. Neeraj Sharma, Advocate. For the Respondent : Mr. P.M. Negi, Deputy Advocate General. Surjit Singh, J (Oral) Appellants Arvind Kumar and Radha Devi are aggrieved by the judgment, dated 20th April, 2006, of learned Additional Sessions Judge (Presiding Officer, Fast Track Court), Solan, whereby they have been convicted of offence, under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life and to pay fine of Rs.5,000/-, each, in default of payment of fine to undergo simple imprisonment for a further period of one month, each. So, they have filed the present appeal. 2. Prosecution case, as it emerges from the record, may be noticed. Appellant Radha Devi was married to deceased Ram Kumar. They belonged to Bharaich District of Uttar Pradesh. Appellant Arvind Kumar became Whether reporters of the local papers may be allowed to see the judgment? …2… acquainted with appellant Radha Devi and deceased Ram Kumar, when they were working as labourers at Delhi. All the three came to Baddi in Solan District of Himachal Pradesh and started working as labourers, with contractor Giri Raj (PW-1). Appellant Radha Devi, her husband deceased Ram Kumar and appellant Arvind Kumar started living in one shed (Jhuggi) at Malpur, in the area of Baddi Police Station. 3. On 16th August, 2005, PW-1 Giri Raj, the Contractor, allegedly received a telephonic call from appellant Arvind Kumar, on his mobile Phone No.9318664404. The call was made from an STD Booth at Haridwar. Caller was appellant Arvind Kumar. He told PW-1 Giri Raj that on the previous night deceased Ram Kumar, after working at some site, returned home in a drunken state and went to sleep and early in the morning he was found dead and so he wrapped him in a Chaddar and threw him in a pond and ran away from the spot alongwith Ram Kumar’s wife, fearing that he might not be implicated in some criminal case. PW-1 Giri Raj was at Chandigarh, when he received the call. He came to Baddi, late in the night and informed one Radhey Shyam Saini about the call received by him. Next day, at 9.30 a.m., he went to Police Post Baddi and lodged report, copy Ex. PW- 9/A, which was entered in the Rojnamcha. In this report, …3… he made no mention of the telephonic call. On the contrary, he stated that he had spotted a dead body in the water tank with its face downward. He did not even say that it was the dead body of Ram Kumar. ASI Tepender Singh (PW-9), accompanied by some other police officials, went to the spot. Dead body was taken out. It was identified to be that of Ram Kumar, by PW-1 Giri Raj. Dead body was sent to the Hospital for postmortem examination, after conducting the inquest. Copy of the purported inquest report is Ex. PW-9/C. Application for postmortem examination was also prepared, which is Ex. PW-9/D. 4. Postmortem was conducted by PW-2 Dr. Satinder Kumar Saini, who gave the opinion that it was a case of drowning. He sent viscera to the Chemical Examiner. As per Chemical Examiner’s report, Ex. PW-9/O, there were traces of liquor in the heart, lungs, liver, spleen, kidneys and both the intestines. 5. It was on 18th August, 2005, that PW-1 Giri Raj made statement Ex. PW-9/F, under Section 154 of the Code of Criminal Procedure, in which he made mention of the alleged telephonic call received from appellant Arvind Kumar, to the aforesaid effect. On the basis of this statement, case was formally registered vide FIR Ex. PW8/A, at 2.40 p.m. Also, we find on record one entry No.32, dated 17th August, 2005, copy Ex. PW-9/A, allegedly …4… made by PW-9 ASI Tepender Singh, on return from the spot. The time of this entry is 8.40 a.m. and in this entry there is a mention of the alleged call made by appellant Arvind Kumar from Haridwar and its contents. Police procured printouts of the STD booth of PW-10 Vijay Kumar of Haridwar. Printouts are Ex.PW-9/M and Ex. PW-10/A. 6. On completion of investigation, both the appellants were challaned. Prosecution examined PW-1 Giri Raj, PW-10 Vijay Kumar, STD booth owner of Haridwar, PW-9 ASI Tepender Singh and PW-2 Dr. Satinder Kumar Saini, besides some formal witnesses, to prove the charge. 7. Appellants denied that any call was made from Haridwar. During the course of trial, they took the plea, in the form of suggestions to prosecution witnesses, that the deceased had gone to urinate in the night and because of his being intoxicated, he fell into the pond and fearing that they might not be involved in the matter, pertaining to his death, they ran away. 8. Trial Court has taken the view that there are two versions of the appellants, who, as per admitted evidence, were with the deceased, on the relevant night. One version, according to the trial Court, is that which appellant Arvind Kumar gave to PW-1 Giri Raj, on telephone, from Haridwar and the other one is which was suggested to the prosecution witnesses, during the course of trial. Learned …5… trial Court has held that the first version is proved by the testimony of PW-1 Giri Raj, as also by the circumstance that the dead body was wrapped in a Chaddar, which fact belies the second version that the deceased went out to urinate and fell into the pond, because in such a situation the deceased was not supposed to have wrapped himself in a Chaddar and knotted its ends, as was noticed after retrieving the dead body, as that would have made urinating difficult. Believing the first version, learned trial Court has convicted the appellants. 9. We have heard the learned counsel for the appellant as also the learned Deputy Advocate General, Mr. P.M. Negi, and gone through the record. 10. At the very outset, we may notice that the learned trial Court has dealt with the matter in a non- serious manner. 11. Prosecution story that there was a telephonic call to PW-1 Giri Raj, made by appellant Arvind Kumar, from Haridwar, does not inspire confidence. This aspect of the matter has not been gone into by the trial Court. Giri Raj, while in the witness-box as PW-1, no doubt, testified that there was a telephonic call received by him on his mobile phone No.9318664404, on 16th August, 2005 and his statement to this effect is corroborated by the testimony of PW-10 Vijay Kumar, STD booth owner, and the …6… printouts, Ex. PW-9/M and Ex. PW-10/A, but further statement of PW-1 Giri Raj that the caller was appellant Arvind Kumar and he told him that on the previous night he and the other appellant (wife of deceased Ram Kumar) had wrapped the dead body in a sheet and thrown Ram Kumar into a pond, taking him for dead, does not appear to be true. 12. According to PW-1 Giri Raj, telephonic call was received by him on 16th August, 2005, in the evening. He went to the Police Post at 9.30 p.m. on 17th August, 2005 and lodged report, which is entered at No.9. Its copy is Ex. PW-9/A. As already noticed, what PW-1 Giri Raj reported to the police was that a dead body had been spotted by him in the water tank, with face downward. Not only that he did not make any reference to the alleged telephonic call received from appellant Arvind Kumar, in this report, but he also did not say that it was the dead body of Ram Kumar. That means by 9.30 p.m. on 17th August, 2005, PW-1 Giri Raj had not received any call from appellant Arvind Kumar or atleast he was not knowing that the call, which was received on 16th August, 2005, in the evening, was made by appellant Arvind Kumar. It was only on 18th August, 2005, that he made statement Ex. PW-9/F (under Section 154 of the Code of Criminal Procedure) that he had received a call from appellant Arvind Kumar, informing him that Ram …7… Kumar had died and he and the other appellant had thrown his dead body, by wrapping it in a blanket. This long delay in disclosing the alleged fact of receipt of telephonic call from appellant Arvind Kumar renders testimony of PW-1 Giri Raj highly doubtful. 13. It appears that the story had been cooked up, after PW-2 Dr. Satinder Kumar Saini gave the opinion that the cause of death was drowning. In concocting this story, PW-9 ASI Tepender Singh appears to have played an active role. He changed the inquest report Ex. PW-9/C and also interpolated an entry in the Rojnamcha, copy Ex. PW-9/E. PW-1 Giri Raj, as already noticed, made statement that appellant Arvind Kumar telephonically apprised him that dead body of Ram Kumar had been thrown into the pond, on 18th August, 2005, and this statement was made to PW-9 ASI Tepender Singh at 1.50 p.m. The statement is Ex. PW-9/F. If that is so, how could there have been reference to this statement in inquest report Ex. PW-9/C, which was prepared on 17th August, 2005. Dead body was sent to the Hospital for postmortem examination, with application Ex. PW-9/D. In this application there is no reference of PW-1 Giri Raj having received any call from anybody, leave alone the caller informing that the dead body of Ram Kumar had been thrown into the water tank. Application Ex. PW-9/D having been presented to the …8… doctor, PW-9 ASI Tepender Singh could not tamper with it. This clearly demonstrates that inquest report Ex. PW-9/C has been tampered with or replaced. 14. Not only this, PW-9 ASI Tepender Singh also made an entry in the Rojnamcha, copy whereof is Ex. PW-9/E. This entry purports to have been made at 8.40 a.m. on 17th August, 2005. That means this entry was made even before PW-1 Giri Raj went to the Police Post and lodged report Ex. PW-9/A, to the effect that a dead body, with face downward, was floating in the pond. Report Ex. PW-9/A was entered in the Rojnamcha at 9.30 p.m. or say after the report Ex. PW-9/E was entered by PW-9 ASI Tepender Singh. 15. Now, according to PW-9/A, PW-9 ASI Tepender Singh, accompanied by Head Constable Om Prakash No.66, left for the spot and took PW-1 Giri Raj along. Report Ex. PW-9/E entered in the Rojnamcha, at the instance of PW-9 ASI Tepender Singh, shows that it had been made on return from the spot, which means after visit to the spot, as per entry Ex. PW-9/A. The time of entry Ex. PW-9/E is precedent to the time of entry Ex. PW-9/A and, therefore, it is fabricated, on the face of it. In this report, Ex. PW-9/E, which is dated 17th August, 2005 and timed 8.40 a.m., it is recorded that PW-1 Giri Raj reported that he had received a call from appellant Arvind Kumar, on his mobile phone, that …9… he and the other appellant had thrown the dead body of Ram Kumar in the pond. When there is no reference to such a call in report Ex. PW-9/A, which is the first report made by PW-1 Giri Raj to the Police and the reference to such a call appears in statement Ex.PW-9/F of PW-1 Giri Raj, which he made on 18th August, 2005, there remains absolutely no doubt that PW-9 ASI Tepender Singh has fabricated the report, Ex. PW-9/E, for the reasons best known to him. Otherwise also, if this report were entered on 17th August, 2005 and was genuine, the FIR would have been registered on the basis of it on 17th August, 2005 itself and not on the next following day on the basis of statement Ex. PW-9/A. 16. Trial Court has believed PW-9 ASI Tepender Singh’s testimony that the dead body was wrapped in a sheet and the ends of the sheet were knotted. As a matter of fact, even this part of the statement of PW-9 ASI Tepender Singh is not believable. Giri Raj, who was the first to spot the dead body, per Rojnamcha entry copy Ex. PW-9/A, did not say in his testimony as PW-1, that the dead body was wrapped in any sheet. It is only PW-9 ASI Tepender Singh who stated that the dead body was wrapped in a sheet and its ends were knotted/tied. He has stated that photographs of the dead body were taken, when it was still wrapped in the bed sheet. However, we do not …10… find any such photograph on record. All the photographs of the dead body, which have been proved on record and are Ex. PW-7/9 to Ex. PW-7/16, show the dead body only wearing an underwear and the rest of the body is naked. Photographer, PW-7 Onkar Sharma, proved the aforesaid photographs. 17. In view of the abovestated position, we are of the considered view that the case of the prosecution does not stand proved. Hence, the appeal is allowed, judgment of the trial Court, convicting and sentencing the appellants, is set aside and both the appellants are acquitted. The appellants being in jail, serving out the sentence, awarded by the trial Court, are ordered to be set at liberty, forthwith, in case their detention is not required in any other case. Before parting with the judgment, we would like to comment upon the working of PW-9 ASI Tepender Singh, who has fabricated the record and the evidence against the appellants in this case. A Police Officer, conducting the investigation of a case, especially when the crime is serious, as in the present case, is supposed to be extra fair and impartial and judicious. If he creates false evidence that by itself amounts to a serious offence. However, we do not think that at this belated stage action should be taken against PW-9 ASI Tepender Singh, under the law, defining offences and providing for their punishment, like the Indian …11… Penal Code or the Police Act, or any other law, but he must be proceeded against departmentally for major penalty. Accordingly, we direct his Appointing Authority (Director General of Police) to proceed against him departmentally for major penalty and to complete the entire process within one year from the date, a copy of this judgment is made available to him by the Office of Advocate General. Registry shall supply a copy of this judgment to learned Deputy Advocate General, Mr. P.M. Negi, free of cost, who shall send the same, with a forwarding letter, from the Office of the Advocate General, to the Director General of Police, Himachal Pradesh, immediately. ( Surjit Singh ), J September 14, 2009(sd) ( Surinder Singh ), J