IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Criminal Appeal No.239 of 2000 Date of Decision: 16th November, 2010 State of Himachal Pradesh Appellant Versus Rajesh Kumar and others Respondents Coram The Hon’ble Mr. Justice R.B.Misra, J. The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? No For the appellant: Mr.R.K.Sharma, Sr. Addl. Advocate General. For the respondents: Mr. Sanjeev Kuthiala, Advocate. Sanjay Karol, J. (Oral) For an offence, which is alleged to have been committed on 16.9.1994, accused were put to trial. In terms of judgment dated 12.10.1999 passed by learned Sessions Judge, Bilaspur, H.P., in Sessions trial No. 8 of 1996 titled as State of H.P. vs. Rajesh Kumar and others, the accused stand acquitted of the charged offences. 2. It is the case of the prosecution that on 16.9.1994 at about 7 p.m. accused persons formed an unlawful assembly at Village Takrehra. The object of the Whether the reporters of Local Papers are allowed to see the Judgment? 2 assembly was to give beatings to Sunil Kumar and Pritam Chand (PW-5). Accused were armed with deadly weapons, such as knives and Lathis. Near the Village accused caught hold of Sunil Kumar and accused Rajesh Kumar alias Fojji gave him a blow with a knife. Also accused Puran alias Bittu gave a blow with a knife to Pritam Chand (PW-5). 3. The injured were taken first to the hospital at Ghumarwin. Dr.Jagdish Gupta (PW-12) examined Sunil Kumar, who issued MLC (Ext.PW-12/C) and referred the patient to PGI Chandigarh. Unfortunately, on the way near Ghagus he succumbed to his injuries. Post mortem was conducted by Dr.K.L.Gupta (PW-13), who issued post mortem report (Ext.PW-13/A) and as per opinion of the Doctor Sunil Kumar had died due to shock caused by sharp cut penetrating wound on abdominal wall below chest on the left side and massive haemorrhage due to damage caused to large intestine and also arterial and venus supply of blood. Prior to his death Shri P.D.Chaudhari, SDM (PW-14), recorded dying declaration (Ext.PW-12/D) of Sunil Kumar in the presence of SI Madho Ram (PW-17). 4. Injured Pritam Chand (PW-5) was also examined by Dr. Jagdish Gupta (PW-12), who issued MLC (Ext.PW-12/E). As per the Doctor injuries were suffered with knife and could be fatal. On the statement (Ext.PW- 12/D) of Sunil Kumar, FIR (Ext.PW-18/A) dated 16.9.1994 3 was registered with Police Station Bharari, under Sections 307, 147, 148, 149, 324, IPC. During investigation accused were arrested. Accused Rajesh Kumar, Kulbir Singh and Puran Chand made disclosure statements (Ext.PW-10/F, Ext.PW-10/D and Ext.PW-10/C, respectively). On the basis of disclosure statements knives (Ext.P-8 and Ext.P-7/1) were recovered vide seizure memos Ext.PW-10/A and Ext.PW10/E. From the place of occurrence blood stained soil was collected vide seizure memos Ext.PW-6/A and Ext.PW-6/C. Blood stained clothes (Ext.P-1, Ext.P-2 and Ext.P-3) of injured Pritam Chand were recovered vide seizure memo Ext.PW-1/A. Dandas and other articles were also taken into possession by the police. Incriminating articles were sent for chemical analysis and as per report sample contained human blood. With the completion of investigation, challan was presented in the Court for trial. 5. The Court below charged the accused for having committed offences punishable under Sections 147, 148, 302 and 307 read with Section 149, IPC, to which accused did not plead guilty and claimed trial. 6. In order to prove its case prosecution examined 18 witnesses and statements of the accused under Section 313, Cr.P.C. were also recorded, in which they pleaded innocence. They also took up the defence that 40-45 students were arrested by the police and kept 4 in the police station for 5-6 days. The real culprits were let off and accused were falsely implicated. Accused did not lead any evidence in defence. 7. The Court below acquitted the accused of the charged offence. Hence the present appeal. 8. From the medical evidence on record, statements of Dr.Jagdish Gupta (PW-12) and Dr.K.L.Gupta (PW-13) as also MLCs it stands evidently proved that Sunil Kumar died due to knife injuries received by him. PW-5 Pritam Chand also received injuries. However, this alone would not prove the fact that accused committed the alleged crime. 9. Prosecution has to prove, beyond reasonable doubt, that accused had formed an unlawful assembly and in pursuance of common object of such assembly stabbed Sunil Kumar and Pritam Chand. Further after forming unlawful assembly they resorted to violence by carrying deadly and armed weapons in their hands and attempted to kill Pritam Chand and murdered Sunil Kumar. In order to prove its case prosecution has essentially relied upon the statements of spot witnesses Shri Shamsher Singh (PW-9) and Shri Pritam Singh (PW-5). 10. PW-9 has not supported the prosecution case at all. He was declared hostile and despite effective cross- examination nothing favourable could be elicited from his statement, which would impeach his credibility. 5 11. Before we deal with the statement of PW-5 it is pertinent to discuss the statement (Ext.PW-12/D) made by deceased Sunil Kumar to PW-4 in the presence of PW-18. According to these witnesses Sunil Kumar had stated that “someone” had inflicted stab injury to him. Now Sunil Kumar specifically does not name any of the accused persons. Importantly no test identification parade was also got carried out to identify the accused. Shree Ram, SHO (PW-18), who carried out the investigation, admits that Pritam Chand had told him that he did not know the name of the accused nor could he identify any one of them. In fact he admits the suggestion that Pritam Chand had never disclosed the names of the accused persons. 12. Now Pw-5 admits in his cross-examination that at the time of occurrence of incident it was dark. Fight had taken place between two groups of boys and on each side there are about 25-30 boys. This clearly shows that it was a free fight between two groups. It appears that young boys had fought on a trivial issue during the fair at Ladraur. Now adverting to statement of PW-5 we find that his version is flickering. On the identify of the accused his stand is vacillating. He admits that he had told the police that he was unable to identify the accused but in the very same breath discloses the names of accused persons and yet later admits that by face he does not know the persons who had quarrelled with him at the time of the incident. 6 So much so he could not identify accused Puran Chand alias Bittu when asked to do so in the Court. Hence his testimony, apart from self-contradictory is not worthy of credence. Thus there is no other material on record to link the accused with the alleged offence. 13. Our attention has been invited to the disclosure statements made by three accused persons. Importantly at the time when the statements were made accused were already in the custody of the police for some time. That apart witnesses to the disclosure statement have not supported the prosecution case at all. One of them Shri Bansi Ram (PW-10) is the Pradhan. According to him no such statement was made in his presence and he was made to sign the statement on the dotted lines by the police. This witness was cross-examined on a different point and yet nothing inculpatory could come out from his version. Consequently even by circumstantial evidence, it cannot be said that prosecution has proved the case against the accused beyond reasonable doubt. The chain, to link the accused to the alleged offence, is not complete. 14. 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 7 record or that acquittal of the accused 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. (R.B.Misra) Judge 16th November, 2010 (Sanjay Karol) (C) Judge.