IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr. Appeal No.266 of 1999 Reserved on: July 27, 2010 Date of Decision : November 3, 2010 State of H.P. …Appellant. Versus: Bakshi Ram & Ors. …Respondents. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant: Mr. Rajesh Mandhotra. Dy. A. G. For respondent No.2: Mr. Ashwani Pathak, Advocate For respondent No.4: Mr. Virender Rathore, Advocate Sanjay Karol, J. For an offence, which is alleged to have been committed on 31.12.1997, accused were put to trial. In terms of judgment dated 8.4.1999 passed by the learned Sessions Judge, Kangra at Dharamshala, in Sessions Case No. 21-K/VII/98 titled as State of H.P. vs. Bakshi Ram & Ors., the accused stand acquitted of the charged offence. 2. As per the case of the prosecution Sh. Birbal was residing with his mother Smt. Misro Devi (PW-4), daughter Subhadra Devi (PW-3) aged 15 years and son Sandeep Kumar (PW-5) aged 11 years in village Ghiana Kalan, Distt. Kangra. 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 Accused No.3 Gorkhu Ram is real brother of accused No.1 Bakshi Ram. They both are cousin of Sh. Birbal. Accused No.2 Shiv Charan and accused No.4 Ran Singh are sons of A-1. Accused also reside in village Ghiana Kalan. They have their houses adjoining to each other. Sh. Birbal was employed as a Gardener at Yol Camp, Kangra. He used to daily go from his house for his job. On account of boundary dispute relations between Birbal and accused were strained. On 31.12.1997 at about 5.30 p.m. Sh. Birbal was coming down from the stairs on the backside of his house when the accused came there. A-1 had a “saria” (iron rod), A-2 had an axe and A-3 & A-4 were holding dandas in their hands. Without any provocation A-2 hit Birbal on his head with an axe and A-1 gave a blow with “saria”. A-3 & A-4 gave blows with dandas. Thereafter accused dragged Birbal to an open space where again they gave him beatings. Hearing cries of Sh. Birbal, his daughter PW-3 and mother PW-4 came at the spot. Both intervened to save him. Accused pushed PW-4 as a result of which she fell on the ground and sustained injuries. Accused also gave her blows of dandas. The incident was witnessed by PW-5. While fleeing from the spot A-2 left his shawl (Ext.P-12) at the spot which was collected by PW-3. At about 6.00 p.m., PW-3 & PW-4 took Sh. Birbal inside the house, where due to excessive bleeding he succumbed to his injuries. The matter could not be reported to the police for the reason that the family had no adult male member in the house and telephone in the village was not working. Consequently, the following morning i.e. 3 1.1.1998, Pradhan Kuldeep Kumar (PW-11) was informed of the incident, who in turn telephonically gave information at Police Post, Gagal, where Daily Diary entry (Ext.PW-15/A) was recorded at 10.30 a.m. by C. Shamsher Singh (PW-15). Police machinery was put into motion. After visiting the spot ASI Ramesh Chand (PW-18) recorded statement (Ext.PW-3/A) of Subhadra Devi (PW-3) and based thereupon F.I.R. No.5/98 dated 1.1.1998 under Sections 302, 323, 34 IPC (Ext.PW-17/B) was registered with Police Station, Kangra at 2.30 p.m. Photographs were taken at the spot by Sh. Parmodh Singh (PW- 7). Investigating Officer prepared inquest report (Ext.PW-1/B) and sent the dead body through Constables Madan Lal and Hoshiar Singh for post mortem which was conducted by Dr. B. C. Khanna (PW-1), who gave his report (Ext.PW-1/C). At the spot PW-3 handed over shawl (Ext.P12) which was taken into possession vide memo (Ext.PW-3/B). Samples of blood stained earth (Ext.P-16) were taken into possession. Spot map (Ext.PW- 18/A) was prepared at the spot and clothes belonging to the deceased (Ext.P1 to Ext.P7) were also taken into possession by the police. A-3 was arrested on 4.1.1998 and in the presence of Sh. Prem Singh (PW-9) and Sh. Roshan Lal he made disclosure statement (Ext.PW-9/A) which led to the recovery of danda (Ext.P-10) from the roof of his cowshed. The same was taken into possession vide memo (Ext.PW-10/A) dated 4.1.1998. A-1 and A-4 were arrested on 6.1.1998. A-2 made disclosure statement (Ext.PW-9/B) dated 7.1.1998 in the presence of Sh. 4 Prem Singh (PW-9) which led to recovery of an axe (Ext.P8), iron rod (saria) (Ext.P9) and danda (Ext.P11) from his house in the presence of Nirmal Singh (PW-10). Clothes were also recovered from there. They were taken into possession vide memos Ext.PW-10/B and Ext.PW-10/C respectively. Clothes were stained with blood. Statements of the witnesses were recorded at the spot. Blood stained sealed samples were sent for chemical analysis and as per report of the Laboratory (Ext.PX), human blood was found on the same. PW-4 was examined by Dr. Anuradha Sharma (PW-2) who opined that injuries suffered by her to be simple in nature. With the completion of investigation challan was presented in the Court for trial. 3. Accused were charged for having committed offences punishable under Sections 302, 323 & 34 IPC, to which they did not plead guilty and claimed trial. In order to prove its case prosecution examined 18 witnesses. Statements of the accused under Section 313 Cr.PC were also recorded. Accused took almost a similar defence and the one taken by A-2 reads as under:- “I am innocent. My uncle Gorkhu Ram had litigation with Birbal, I and the real nephew of Gorkhu Ram and that is why false case has been registered against us under suspicion. Birbal was my uncle in relation of Biradri. Gorkhu Ram is quite old and has a very poor eye sight. We were given beatings by the police in police station and despite that no statement has been made by us in the police station nor any recoveries have been made at our instance.” 5 4. By giving them benefit of doubt trial Court acquitted the accused of the charged offences. 5. That there was animosity between the deceased and the accused is not in dispute. Village Ghiana is not connected by road. However, it has come in the testimony of PW-17 that Police Station, Kangra is at a distance of 22 kms. from village Ghiana. As per the version of PW-9, Police Post Gagal is at a distance of 7 kms. from Ghiana. It has also come in the evidence of PW-3 that Yol Camp is just at a distance of 3 to 4 kms. from there and by habit villagers daily go to Yol Camp even for purchasing their daily use articles and also for daily work and employment. She admits that in Yol Camp there is a bazaar where there are many taxies. 6. Incident took place on 31.12.1997 at about 5.05 p.m. According to PW-3, S/Sh. Jagdish, Sahib Singh and Sanjeev immediately reached the spot and were of the view that police be promptly informed. However since bus service was not available at night and telephone in the village was not working therefore matter could not be reported to the police. Both PW-4 & PW-5 also mention the presence of S/Sh. Jagdish & Sahib Singh at the spot. PW-5 additionally gives reference of Sh. Sanjeev. Now S/Sh. Jagdish, and Sanjeev have not been examined in Court and according to Sh. Sahib Singh (PW-6), who is a neighbour, after hearing sounds of weeping, at about 8.30 p.m. he went to the house of Birbal and saw his body lying 6 on the floor covered with a Khandolu (mattress made of cloth). Family members were crying and saying that Birbal has been killed. They were naming the accused and saying that they have killed Birbal. He stayed there for 10 minutes and came back as he was recovering from his surgery. He explained that police could not be informed for the reason that telephone was dead. Now this witness, to say the least, has behaved in an extremely irresponsible and abnormal manner rendering his version to be wholly unreliable. He does not explain the surgery which incapacitated him from approaching the police by either walking for a distance of 3 to 4 kms. or sending some one else in the village upto Yol Camp, from where police could be informed of the incident, at least on the telephone. He is a Govt. servant. He was duty bound to inform the police of a serious crime of murder which had taken place in the village. It is unbelievable that a neighbour would leave a widow and two minor children alone throughout the night with a dead body lying in the house. His unusual conduct renders his version to be unworthy of credence. Also while deposing in Court this witness has made several improvements. When confronted with his earlier statement recorded by the police (mark ‘B’), he admits that he did not tell the police that he had reached the house after office hours. He admits that his version that he had gone to the house of the deceased after hearing sounds of weeping is not there. In fact he states that his statement was never recorded by the police. He admits not to have told the police that while crying complainant 7 and other members of the family were taking names of the accused persons. It is his version that Sanjeev and Jagdish had visited the house of the Pradhan on the day of the incident itself. But this stands contradicted by the Pradhan itself. 7. Further according to Sandeep Kumar (PW-5), he along with Panch Smt. Kamla went to the house of Pradhan in the morning at about 9.00 a.m. and narrated the incident to him. Now Smt. Kamla has not been examined in Court and according to Pradhan Kuldeep Kumar (PW-11), PW-5 came to him weeping in the morning of 1.1.1998 and informed that his father had been killed and they “suspect” the “neighbours” for the same. Now this witness has been declared hostile and cross-examined at length. Nothing incriminating has come out in his statement. He admits that he telephonically informed the police about the incident. From Ext.PW-15/A, it is clear that call was made on 1.1.1998 at about 10.30 a.m. 8. Thus there has been a delay of more than 18 hours in reporting the matter to the police. If version of PW-6 is to be believed, then Jagdish and Sanjeev had already visited the house of the Pradhan same night and why no action was taken thereafter has not been explained. Prosecution could not, by clear, cogent and convincing material prove the fact that telephone lines of the village were dead and police could not be contacted by any mean on the day of the incident. 9. There is an uncontroverted version of PW-11 that police reached the spot on 1.1.1998 at about 9/9.30 a.m. but 8 according to PW-18 he reached the spot only at about 12.30 a.m. Police was aware of the death which had taken place in the village, yet FIR was not registered immediately. The Investigating Officer first went to the spot, recorded statement of the daughter of the deceased and only thereafter got the FIR recorded. The Investigating Officer gave sufficient time to the parties to deliberate, consult and discuss the events. The investigation cannot be said to be fair and is definitely tainted. 10. Here version of C. Shamsher Singh (PW-15) who scribed report (Ext.PW-15/A), on the asking of PW-18 gains significance. According to him, Pradhan had spoken with Ramesh Chand for about 10 to 15 minutes. Though this fact is specifically denied by PW-18, but however we find version of PW-15 to be acceptable being more convincing and truthful. Now what talks took place for such a long time has not been disclosed fully. It is unbelievable that Pradhan would have not disclosed about the identity of the deceased and/or the suspicion of the family members. PW-18 states that after giving information, the informant disconnected the telephone but qualifies by stating that “I did not want to take any further information from him”. It is rather strange that a police officer having come to know of murder would not want to make any further inquiry about the same and that too from the Pradhan. In this background, apart from the delay, the manner in which the police has recorded the FIR renders the prosecution version to be extremely doubtful. 9 11. According to Dr. B. C. Khanna (PW-1) she found following injuries on the body of the deceased Birbal:- “There was an incised wound over the right side of head and face, which involved the right ear, which was cut in the middle. The bones in front and back of the ears were also cut. The diamention of the wound was 11 cms.x 4 cm. and 8 cms. The external auditory canal was cut. The wound was deeper in the lower part. The skin was retracted from the bone in upper part. The zygoma in front and masteoid were cut. Pterygoid fossa was exposed. Muscles, artries and veins were cut. Coaugulated blood clots of dark red colour were present. There was a lacerated wound on the scalp on the left side over vertex 4 cms. X 1 cm x skull deep. 13 cms above the left ear. 4 cm away for midline. Coaugulated blood was present.” 12. No other injuries were found on the body of the deceased. In her opinion, injuries were anti mortem and the deceased had died as a result of shock due to haemorrhage caused by injuries to large vessels in the neck and head. She conducted the post mortem and gave report (Ext.PW-1/C). Thus from the medical evidence death of the deceased stands established on record. 13. Dr. Anuradha Sharma (PW-2) has proved that PW-4 also received following injuries on her body which could be caused due to fall or rolling down on a surface:- “1. About 6” x 5” bluish pink bruise on right arm anterior and lateral side, underlying bone is within normal limits. 10 2. About 4” x 2” bluish pink bruise, left arm lateral side, underlying bone is within normal limits. 3. Abrasion 1” x ½” left elbow, posterior side, reddish scab formation. 4. About 1” x 1” bluish pink bruise, right knee. 5. Complains of pain right side back.” 14. However, injuries alone would not prove the guilt of the accused and by itself cannot be taken as a circumstance in that direction. 15. For proving the incident prosecution has relied upon the version of PW-3, PW-4 & PW-5. Allegedly they alone have witnessed the occurrence of the incident. PW-3 has narrated the incident as per the prosecution story. We need not reproduce her lengthy statement but would deal with the improvements and contradictions made therein. Her version cannot be said to be absolutely convincing and reliable. She admits that her version that her brother PW-5 was sent to the house of Pradhan with the information that accused had killed their father is not there in her statement (Ext.PW-3/A) recorded by the police u/s 154 Cr.PC. Similarly her version that (i) PW-5 had witnessed the incident; (ii) he also tried to save the deceased; (iii) A-2 gave a blow with axe and A-1 gave a blow with saria to her grand mother; (iv) she had narrated the incident to Jagdish, Sahib Singh and Sanjeev; and (v) A-1 had hit her father with saria not to be recorded therein. We are of the view that her testimony stands contradicted by her own statement (Ext.PW.3/A). In Court she states that her brother was a witness to the incident which fact 11 significantly is conspicuously absent. Now between the time of the incident and recoding of the statements undisputedly witnesses were together. They would have definitely narrated and discussed the events witnessed by them. Strangely enough in Ext.PW-3/A she failed to make mention about the presence of her brother. Further in Court she states that she also tried to rescue her father whereas in Ext.PW-3/A, it is specifically mentioned that she did not try to save her father and only her grand mother intervened and she also suffered injuries. 16. According to this witness she carried her father to the house at the time when admittedly he was bleeding. Now no stains of blood were found on the clothes of any of the witnesses. Further, according to her, her father was dragged for about 5 to 6 feet. She admits that surface was stony. She states that second time accused gave beatings to her father with the weapons till the time he fell down and become unconscious. Now this version of here stands contradicted by medical record. As already noticed, only two injuries were found on the body of the deceased. There were no abrasion etc. 17. According to her at the first instance only A-1 and A-2 had given blows with saria and axe. This belies the prosecution story. Allegedly all had given beatings. In this background statement of Pradhan that the complainant had only “suspected” the accused of having committed the crime gains significance. The fact that A-1 and A-2 had given blows with saria and axe does not find mentioned in her statement (Ext.PW- 3/A) which indeed is a very lengthy one. Her contradictions and improvements only renders her presence at the spot to be extremely doubtful. 12 18. Further, we find version given by PW-4 to be extremely unreliable and unconvincing. We may take note of the following observations made by the Court at the time of recording of her statement:- “The witness is replying to the questions after considerable delays and the replies are not spontaneous. (The understanding of the witness is extremely poor and she is giving a blank look to all the questions which have been put by the learned defence counsel. The questions are being repeated time and again, to which she is not answering.)” 19. We find that her statement is self contradictory. She states that when accused started fighting with her son and A-2 gave blow with an axe she did not do anything. Accused fled away and she tried to put bandage on his wounds. But however in the next breath she states that when she tried to save her son she also was given blows with dandas by A-1, A-3 and A-4. This version stands contradicted by the version of PW-3, according to whom A-1 had given blows with a saria. According to this witness only A-2 had given blows with an axe whereas according to PW-3, both A-1 and A-2 had given blows with iron rod and axe. Version of PW-3 that A-2 had given blows with an axe to her grand mother is not supported by PW-4, according to whom A-1, A-3 & A-4 had given her blows. She is silent with respect to A-2. Most importantly she admits that she reached the spot when her grand daughter (PW-3) was picking up the deceased. This creates a doubt about her presence at the spot at 13 the time when beatings, if any, were given by the accused. She appears to have arrived some time later. 20. Further presence of PW-5 at the spot appears to be extremely doubtful. Firstly as has been noticed hereinabove his presence is not mentioned in Ext.PW-3/A. Next he states that at about 5.30 p.m. he was near the water tap. He came back and saw A-1 with saria, A-2 with axe and A-3 and A-4 with dandas in their hands. His “father had been given an axe blow.” His father was taken to an open place and given beatings with dandas and saria. His father had injuries on his head and ears. His sister and grand mother were also present at that time. When his grand mother tried to intervene she was also given beatings. Now when confronted with his earlier statement recorded by the police under Section 161 Cr.PC, mark ‘A’ he admits the fact that he had disclosed the incident to the Pradhan is not mentioned there. His version that he had informed both Subhadra Devi and Kamla that he had witnessed the incident is also not there. According to him, he and his sister tried to save their father. Not only this fact is not mentioned in his statement (Mark ‘A) but also stands contradicted by Ext.PW-3/A and version of PW-3 & PW-4 in Court. 21. Statements of the aforesaid spot witnesses, in our considered view, do not inspire confidence. There are improvements and contradictions rendering the prosecution case to be extremely doubtful. A-2 & A-3 allegedly made disclosure statements Ext.PW9/A dated 4.1.1998 and Ext.PW-9/B dated 14 7.1.1998. This led to recovery of the weapons of offence vide memos Ext.PW-10/A dated 4.1.1998 and Ext.PW-10/B dated 8.1.1998. Even with regard to the same we are of the view that prosecution version does not inspire confidence. 22. According to Sh. Prem Singh (PW-9), A-3 made disclosure statement in his presence. Now he admits that he is a close relative of the deceased. He lives at a distant place. He admits that police knew that he was related to the deceased and many people had gathered at the spot. Yet police did not associate any independent person. Why same was not done has not been explained. The other witnesses S/Sh. Karam Chand and Roshan Lal who have signed the memos have not been examined as witnesses. 23. Sh. Nirmal Singh (PW-10) is a resident of village Pathaniar which is at a distance of 10 kms. from Ghiana. He is a close relative of the deceased. Why police did not associate any independent and local person has not been explained. He is a witness to the recovery of dandas, rod and axe. In cross- examination, he admits that recovery memos were reduced into writing on 8.1.1998. Previous day he had noticed the police in the village and the police had also searched the entire house. He further states that when he reached at the spot, articles were already lying with the police. This renders the prosecution case of recovery to be false. 15 24. The genesis and the origin of the occurrence appears to be shrouded in deep mystery and the presence of the spot witnesses to be highly doubtful. 25. The accused have had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down in Mohammed Ankoos and others vs. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the persons has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. ( Deepak Gupta ) Judge. ( Sanjay Karol ), Judge. November 3, 2010. (rana)