IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeals No.38, 43, 46, 55, 127, 219, 240 of 2005 & 209 of 2008. Decided on : September 8, 20091 1. Cr.A No.38/2005 Rahul Singh …Appellant. Versus State of H.P. …Respondent. 2. Cr.A No.43/2005 Malkiat Singh …Appellant. Versus State of H.P. …Respondent. 3. Cr.A No.46/2005 Manjit Singh …Appellant. Versus State of H.P. …Respondent. 4. Cr.A No.55/2005 Naveen Kumar …Appellant. Versus State of H.P. …Respondent. 5. Cr.A No.127/2005 State of H.P. …Appellant. Versus Amrish Rana and others …Respondents. 6. Cr.A No.219/2005 Harjinder Singh …Appellant. Versus State of H.P. …Respondent. 7. Cr.A No.240/2005 Amrish Rana …Appellant. Versus State of H.P. …Respondent. Whether Reporters of the Local Papers may be allowed to see the judgment? …2… 8. Cr.A No.209/2008 Gurjant Singh …Appellant. 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? Yes. For the Appellants : M/s N.K. Thakur and Ranjan Lakhanpal, Advocates, for Rahul Singh in Cr.A No.38/2005. Mr. Anup Chitkara, Advocate, vice Mr. Suneet Goel, Advocate, for Malkiat Singh in Cr.A No.43/2005. Mr. N.K. Thakur, Advocate, for Manjit Singh in Cr.A No.46/2005. Mr. M.S. Guleria, Advocate, for Naveen Kumar in Cr.A No.55/2005. Mr. P.M. Negi, Deputy Advocate General, and Mr. Ramesh Thakur, Assistant Advocate General, for State in Cr. A No.127/2005. Mr. Anup Chitkara, Advocate, for Harjinder Singh in Cr. A No.219 of 2005. Mr. Anup Rattan, Advocate, for Amrish Rana in Cr.A No.240/2005. Mr.Ramakant Sharma, Advocate, for Gurjant Singh in Cr.A No.209/2008 For the Respondent(s): Mr. P.M. Negi, Deputy Advocate General, and Mr. Ramesh Thakur, Assistant Advocate General, for the State in all the appeals. Mr. Anup Chitkara, Advocate, for respondents No.1 & 2 in Cr.A No.127 of 2005. …3… Surjit Singh, J (Oral) The present eight appeals, whose particulars are given in the heading of this judgment, are being disposed of by a common judgment, as all of them are directed against two judgments delivered in the same Sessions Trial and evidence, upon which the judgments are based, is the same. The judgments are dated 20th January, 2005 and 22nd September, 2007, delivered by Sessions Court at Una. As a matter of fact, there could have been a single judgment, but the necessity for writing a second judgment arose, because one of the appellants (convicts), namely Gurjant Singh, after the close of the evidence by the prosecution and even after his own examination, under Section 313 of the Code of Criminal Procedure, absconded and he had to be declared a proclaimed offender, on account of his being not traceable. A separate judgment was written in his (Gurjant Singh’s) case on 22nd September, 2007. 2. We may notice the prosecution case, which led to the trial. Una Police filed a report, under Section 173 of the Code of Criminal Procedure, against 15 persons, under Sections 147, 148, 302, 323, 324, 341, 212, 201 and 120-B, read with Section 149 of the Indian Penal Code, and Section 25 of the Arms Act. Out of the challaned 15 persons, eight, namely appellant Amrish Rana, appellant Gurjant Singh, appellant Harjinder Singh, appellant Naveen Kumar, Ashok Kumar (deceased), appellant Rahul Singh, appellant Malkiat …4… Singh and appellant Manjit Singh, all of whom have filed separate appeals, were alleged to have formed an unlawful assembly, on 10th September, 1999, with the common object of making murderous assault upon PW-1 Ashwani Kumar, PW-2 Ram Pal, deceased Rajiv, deceased Santokh Singh, deceased Raj Kumar @ Kaka, another Raj Kumar son of Hari Prakash, and in prosecution of that object, all the above- named appellants and their deceased accomplice Ashok Kumar allegedly armed themselves with deadly weapons, like swords, Gandasis, hockey sticks, clutch wire, etc. and waylaid the above-named deceased and injured, when they were going by a Maruti Car to a place called Pir Nigah, near village Malahat, at a distance of 2-3 kms from Una. The above-named appellants and their deceased accomplice Ashok Kumar had allegedly blocked the road by parking a Car, bearing registration No.PB-7A-8408 and a motor cycle to force the injured and the deceased to stop at the site of the occurrence. When the injured and the deceased, who were travelling by their Maruti Car No.HP-20A-0948, reached village Malahat, the road being blocked, as aforesaid, they had to bring their Car to a halt. As soon as the Car stopped, the injured and the deceased were attacked. They were still in the Car, when attacked. Front screen of the car of the injured and the deceased was broken and the injured and the deceased were attacked with sword by appellant Amrish Rana and with Gandasi by appellant Gurjant Singh, while …5… other appellants attacked them with hockey-sticks, dandas and clutch wire. Injured and the deceased came out of the Car, one-by-one, and when they came out they were dealt more blows with the aforesaid weapons. The incident took place around 9.30 in the night. It was a lightning attack, as the appellants took only 3-4 minutes to accomplish the intended act. Thereafter, they escaped by Car No.PB-7A- 8408 and the motorcycle, which they used to block the road. Injured and the deceased raised alarm, but before the residents of village Malahat could come to their rescue the appellants fled from the scene. 3. Police was informed by someone, at 9.35 p.m., telephonically. Entry, copy Ex. PW-32/A, was made in the Rojnamcha, at Police Station, Una, with regard to the said information. SHO, PW-38 Inspector Kishan Singh, after getting the aforesaid information, went towards Mehatpur to prevent the assailants from escaping to the neighbouring State of Punjab. 4. At 10.05 p.m., a doctor from Una Hospital made a call to the police that condition of some of the injured persons, brought to the Hospital, was serious and police should reach immediately to take further action in the matter. PW-29 ASI Amar Singh then went to the Hospital. He enquired from PW-28 Dr. Shiv Pal Kanwar, if the injured were fit to make statements. The said doctor certified that PW-1 Ashwani Kumar and deceased Santokh Singh were fit …6… to make statements. Thereafter, PW-29 ASI Amar Singh recorded statement Ex. PA, under Section 154 of the Code of Criminal Procedure, of PW-1 Ashwani Kumar and sent the same to the Police Station for the formal registration of the case. By the time he was free (after having recorded Ex. PA) to record the statement of Santokh Singh, the second injured person, certified to be fit to make statement, he found that he (Santokh Singh) had become unconscious. So, he could not record his statement. 5. All the injured persons, including the deceased, who were alive when taken to the Hospital at Una, were medically examined by PW-28 Dr. Shiv Pal Kanwar. Within a few hours, one of the injured, named Rajiv Kumar died at Una Hospital. Two other seriously injured persons, namely Raj Kumar and Santokh Singh, were moved from Civil Hospital, Una, for better treatment to other places. Raj Kumar was taken to PGI, Chandigarh, where he breathed his last on 15th September, 1999. Santokh Singh was taken to Daya Nand Medical College-cum-Hospital, Ludhiana, where he expired on 16th September, 1999. Postmortem examinations were conducted by different doctors. 6. Postmortem examination of the dead body of Raj Kumar, who died on 10th September, 1999, itself, at Una Hospital, was conducted by PW-22 Dr. Parveen Bhardwaj. He noticed the following external injuries: 1. An incised wound on lower lip 2 cm from …7… left angle of mouth 3x2x1 cm. Teeth were normal. 2. Incised wound 3 cm x 1 cm x muscle deep on left side of chest 7 cm above nipple at 11 O’ clock position. Placed parallel to ribs. 3. Incised wound 3 cm x 1 cm x muscle deep on left interior axillary line 13 cm above left nipple and 11 cm from wound No.2, placed obliquely. 4. Incised wound penetrating 3.5 cm x 1.5 cm on left side of lower part of the chest, on posterior axillary line. On probing it is traced to abdominal cavity, rupturing, diaphragm and spleen. 5. Incised wound 2 x 1.5 cm on right side of chest on post axillary line. It was traced to abdominal cavity rupturing liver (penetrating). On opening the dead body, he noticed that pleurac was torn at two places, extending to external injuries No.4 and 5 above. Lower parts of larynx and trachea were lacerated and haemorrhaged. Peritoneum was incised on left side on upper part, cavity was full of blood. Liver was haemorrhagic and its right lobe was ruptured. Spleen was also haemorrhagic and ruptured on superior surface. The doctor opined that all the injuries were antemortem and were sufficient to cause death. According to him, time lag between the death and the postmortem was within 24 hours. He issued postmortem report Ex. PW-22/J. He opined that the injuries were possible by assault of Gandasis or Khukhris. …8… 7. Postmortem of the dead body of Raj Kumar, who died in the PGI on 15th September, 1999, was conducted by PW-23 Dr. Surinder Singh. He noticed the following external injuries: 1. Oblique stitched wound with unhealthy granulation directed above downward and laterally was present over the right parieto occipital region of the scalp. Starting 22 cm posterior to nasion in the midline, length of wound was 10 cm. 2. 6 cm long/stitched wound directed from above downward and laterally toward the right was present over the right parietal and occipital region of scalp starting just below the middle of injury No.1. 3. 7 cm long oblique wound with unhealthy granulation directing above downward and laterally toward right starting 1.5 cm below the medial and injury No.2. 4. Curved 4 cm long wound starting 1.5 cm below injury No.3 and joining the injury No.3 in its middle. 5. Horizontal wound 4 cm long was present over right occipital region of scalp 5 cm posterior to the middle of right Pinna. 6. Abnrasion 3 x 1.5 cm with brown scab was present just posterior medial to right acromian. 7. Abrasion 5 x 1.5 cm with brown scab was present. Posterior aspect of right shoulder 1.5 cm posterior to medial injury No.6. 8. Abrasion 3 x 1 cm with brown scab was present posterior service of right shoulder 2 …9… cm below and medial to injury No.7. 9. Horizontal wound 5 x 1 cm size, muscle deep was present over medial aspect of right arm with both acute end 7 cm below right elbow joint. 10. Skin deep oblique wound present over 2 distal phalanx of left index finger. 11. 20 cm long partial healed wound directed above downward was present posterior aspect of left upper arm and left side of thorax. 12. 11 cm oblique curved wound concavity upward was present left occipital region. 13. 20 cm long partially healed wound which was oblique and superficial was present, starting 11 cm lateral to the mid line at the level of T1 and 11 cm at the level of TA. 14. 12 cm long partially healed wound oblique directing anterior posteriorally and laterally was present over the left fronto parietal region of scalp starting 7 cm posterior to level of left eye-brow. 15. Brown abrasion of 1 x 1 cm was present on the bridge of nose. On opening of the head, following injuries were found: Skull injuries 1. Fracture 17 cm long was present right fronto parieto occipital region of skull, starting 3 cm above right supera oribital margin. 2. Fracture of 15 cm long left fronto parietal region of skull, meeting fracture No.1 in its middle. …10… 3. Fracture 7 cm long was present left frontal region. 4. Fracture 17 cm long starting parietal ominense meeting fracture No.1 right occipital region. 5. Fracture 8 cm long was present left parietal wound. Brain Injuries Sub archnoid haemorrhage was present, left fronto tamporal region. Subdural Haemotoma was present, right tamporal region of brain of the size 10x4x 1cm Inter haemispheric haemorrhage was present. Contusion 5 x 3 x 3 cm was present right tamporal region of brain. Lacerated contusion 5x4x3 cm was present right parieto occipital region of the brain. Laceration 5 x 1 cm present left occipital lobe. Tonsils are grooved. Intracerabral haemorrhage was present right parieto occipital lobe. Brain matter was congested and oedimatous. All the injuries were opined to be antemortem and having been caused by sword, gandasi or khukhri. 8. Autopsy of the third dead body, i.e. of Santokh Singh, was conducted by PW-34 Dr. Gurcharan Singh. He noticed the following external injuries: 1. A stitched wound 9½” long on abdomen in midline extending from epigastric region to suprapubic region. 2. Three stitched septic wounds each 1” long on right lumber region ¾” apart to each other. 3. A stitched septic wound ¼” long 4” left …11… lateral and above the umbilicus. 4. Stitched septic wound ¾” long 2” above and in the line to injury No.3. 5. Stitched septic wound ¾” long 4 “ lateral and in the line to injury No.3. 6. Stitched septic wound ½” long 1” above and in the line to injury No.5. 7. Stitched wound 1” long and 1½” lateral to left nipple. 8. Stitched wound 1” long on medial side of left forearm in middle 1/3rd. 9. Stitched wound 1¼” long on lateral aspect and middle 1/3rd of left thigh. 10. Stitched wound 1” long on left side of chest on lower third region on anterior axillary line. On opening the dead body, thoracic and abdominal cavity were found full of blood. Abdomen cavity was also found full of pus. Large intestine was found to be having a stitched wound on left side in lower aspect. All the injuries were opined to be antemortem. Cause of death was opined to be saepticaemia, which, according to the doctor, was sufficient to cause death in ordinary course of nature. 9. All the appellants (convicts) were arrested during the course of investigation. Appellant Amrish Rana, while in police custody, made a disclosure statement, Ex. PW-38/S, which led to the discovery of two swords, Ex. P-1 and Ex.P- 15, from a pond, in the area of Sub Division Gagret. Appellant Naveen Kumar made disclosure statement Ex. PW- …12… 38/AO, leading to the discovery of clutch wire Ex. P-21. PW- 38 Inspector Kishan Singh, SHO Police Station, Una, visited the spot on 10th September, 1999, itself, around 11.35 p.m. and recovered, from the spot, two gandasis, Ex. P-6 & Ex. P- 7, hockey stick Ex. P-8 and Lathis/dandas Ex. P-9 & Ex. P-10 and made them into separate parcels and sealed those parcels. 10. Scene was also inspected PW-25 Dr. Arun Sharma, Forensic Expert, who gave report Ex. PW-25/A. As per his report, there were marks of violence inside and outside the Car, indicating that the deceased and the injured were attacked, when they were still inside the Car. Weapons recovered from the spot by PW-38 Inspector Kishan Singh and the clothes of deceased Rajiv were sent to the Chemical Examiner, who, vide report Ex. PAA, gave the opinion that there were stains of human blood of group ‘A” on the clothes of the said deceased and the two gandasis and a danda, recovered from the spot. 11. On completion of investigation, report was filed in the Court of concerned Judicial Magistrate, who, after complying with the requirement of Section 207 of the Code of Criminal Procedure, committed the case to the Sessions Court. Seven more persons were challaned alongwith the present appellants and deceased Ashok Kumar, for allegedly screening the appellants and their deceased accomplice and helping them in destruction of evidence. …13… 12. Learned trial Court charged the appellants and their deceased accomplice, as also the persons, who allegedly screened them from legal punishment and helped them in destruction of evidence. The appellants and their accomplice were charged with the following offences: Sr.No Names of appellants/ Their accomplices. Offences with which charged. 1. Amrish Rana Gurjant Singh Naveen Kumar Ashok Kumar Malkiat Singh Manjit Singh Rahul Singh Sections 147, 148, 120-B, 302, 341, 323, 324, 201, read with Section 149 of the Indian Penal Code, and Section 25 of the Arms Act, read with Section 149 of the Indian Penal Code. 2. Gurpreet Singh Shyam Sunder Parveen Kumar Section 120-B of the Indian Penal Code. 3. Anil Kumar Sections 120-B,201 and 212 of the Indian Penal Code. 4. Shubhdarshan Rani Shweta Sheetal Sections 109, 120-B and 212 of the Indian Penal Code. 5. Harjinder Singh Sections 147, 148, 302, 341, 323, 324, read with Section 149 of the Indian Penal Code, and Section 25 of the Arms Act, read with Section 149 of the Indian Penal Code. 13. Prosecution examined 38 witnesses to prove the charge. Trial Court has mainly relied upon the testimony of PW-1 Ashwani Kumar and PW-2 Ram Pal, the two injured eye-witnesses, to come to the conclusion that appellants Amrish Rana, Gurjant Singh, Harjinder Singh, Naveen Kumar, Rahul Singh, Malkiat Singh and Manjit Singh are guilty. Appellants have been convicted of the following offences and awarded the sentences, mentioned against their names: …14… Name of the convict (s) Offences of which convicted Sentence awarded to each of the convicts. Amrish Rana Harjinder Singh Naveen Kumar Rahul Singh Malkiat Singh Manjit Singh Sections 302, 324,323,341, 148 read with Section 149 of the Indian Penal Code. Imprisonment for life and a fine of Rs.50,000/-, in default of payment of fine to undergo rigorous imprisonment for a further period of two years, for offence under Section 302, read with Section 149 of the Indian Penal Code; rigorous imprisonment for three years and fine of Rs.10,000/-, in default of payment of fine to undergo rigorous imprisonment for a further period of six months, for offence under Section 324, read with Section 149 of the Indian Penal Code; rigorous imprisonment for one year and a fine of Rs.5,000/-, in default of payment of fine to undergo rigorous imprisonment for a further period of two months, for offence under Section 323, read with Section 149 of the Indian Penal Code; simple imprisonment for one month and a fine of Rs.500/-, in default of payment of fine to undergo simple imprisonment for a further period of seven days, for offence under Section 341 read with Section 149 of the Indian Penal Code; and rigorous imprisonment for three years and a fine of Rs.5,000/-, in default of payment of fine to undergo rigorous imprisonment for a further period of six months, for offence under Section 148, read with Section 149 of the Indian Penal Code. One of the accomplices of the appellants, namely Ashok …15… Kumar, died during the pendency of the trial and, therefore, the case as against him abated. Other persons challaned alongwith the appellants were acquitted. 14. During the course of trial, but after the close of the prosecution evidence, appellant Gurjant Singh absconded. He was declared proclaimed offender and the trial against the remaining accused continued. All the appellants, except appellant Gurjant Singh, were held guilty and convicted and sentenced, as noticed hereinabove, vide judgment dated 20th January, 2005. State has filed an appeal against this judgment, seeking enhancement of punishment of the accused (convicts). Convicts have filed separate appeals challenging their conviction and sentences. 15. Lateron appellant Gurjant Singh was arrested and he too was convicted of offences, under Sections 302, 324, 323, 341, 148 & 147, read with Section 149 of the Indian Penal Code, and sentenced to undergo imprisonment for life and a fine of Rs.50,000/-, in default of payment of fine to undergo imprisonment for a further period of two years, for offence under Section 302, read with Section 149 of the Indian Penal Code; rigorous imprisonment for three years and fine of Rs.10,000/-, in default of payment of fine to undergo imprisonment for a further period of six months, for offence under Section 324, read with Section 149 of the Indian Penal Code; imprisonment for one year and a fine of Rs.1,000/-, in default of payment of fine to undergo simple …16… imprisonment for a further period of 15 days, for offence under Section 323, read with Section 149 of the Indian Penal Code; imprisonment for one month and a fine of Rs.500/-, in default of payment of fine to undergo simple imprisonment for a further period of seven days, for offence under Section 341 read with Section 149 of the Indian Penal Code; rigorous imprisonment for two years and a fine of Rs.3,000/-, in default of payment of fine to undergo imprisonment for a further period of one month, for offence under Section 148, read with Section 149 of the Indian Penal Code; and rigorous imprisonment for one year and a fine of Rs.1,000/-, in default of payment of fine to undergo imprisonment for a further period of 15 days, for offence under Section 147 read with Section 149 of the Indian Penal Code, vide judgment dated 22nd September, 2007. State has not appealed against this judgment, seeking enhancement of punishment. That means the appeal of the State is for enhancement of sentence of all the appellants, except appellant Gurjant Singh. Convict Gurjant Singh has appealed for setting aside the judgment and acquitting him of all the offences. 16. We have heard the learned counsel for the appellants as also the learned Deputy Advocate General, Mr. P.M. Negi, and gone through the record. 17. Case was registered on the basis of statement Ex. PA, made by PW-1 Ashwani Kumar. The statement purports to have been made by PW-1 Ashwani Kumar at 10.30 p.m., …17… on the very night of the occurrence, i.e. 10th September, 1999. This statement was recorded by PW-29 ASI Amar Singh, who was at that time posted as Incharge, Police Post, Una. It was recorded, after the doctor certified that PW-1 Ashwani Kumar was fit to make statement. As per this statement, four persons (and not six, as testified by PW-1 Ashwani Kumar and PW-2 Ram Pal during the course of trial), namely PW-1 Ashwani Kumar, deceased Rajiv Kumar, deceased Santokh Singh and deceased Raj Kumar, were travelling by a Maruti Car, as they wanted to go to Pir Nigah and that around 9.30 p.m., when they reached village Malahat, they found that two cars had been parked and several persons were standing there and those persons included appellant Amrish Rana and Gurjant Singh, whom he (PW-1 Ashwani Kumar) knew from before. It is further recorded in Ex. PA that appellant Amrish Rana was armed with a sword and all the persons, without uttering anything, attacked them with deadly weapons and caused them injuries and thereafter all of them (the assailants) fled from the scene. PW-1 Ashwani Kumar also got recorded in Ex. PA that after hearing their hue and cry residents of village Malahat came and they carried them to District Hospital at Una. The aforesaid statement was recorded in the Hospital at Una. 18. While in the witness-box, PW-1 Ashwani Kumar, besides naming appellant Amrish Rana and Gurjant Singh, …18… the only two named assailants in Ex. PA, named all other appellants as also their deceased accomplice Ashok Kumar and testified that they were armed with swords, gandasis, hockey-sticks, dandas, khukhris and clutch wire. PW-2 Ram Pal, another injured eye-witness, also named all the appellants and their deceased accomplice Ashok Kumar as the persons, who attacked them, when they stopped their Car on seeing that two Cars had been parked at village Malahat. Both these witnesses were confronted with their previous statements. PW-1 Ashwani Kumar, besides making statement Ex. PA, under Section 154 of the Code of Criminal Procedure, on the very date of the occurrence, also made a statement, under Section 161 of the Code of Criminal Procedure, two days later, i.e. on 12th September, 1999, which is Ex. DA. PW-2 Ram Pal made statement on 12th September, 1999, which is Ex. JB. 19. PW-1 Ashwani Kumar, when confronted with his statement Ex. PA, which is the basis of the