IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.A. No.258 of 2005. Judgment reserved on: 22.8.2008 Date of decision: 3rd Sept. 2008. Subhash and others …..Appellants -Versus- State of H.P. ….Respondent Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice V.K.Ahuja, Judge. Whether approved for reporting? Yes For the Appellants: Mr.Shashi Bhushan, Advocate For the Respondent: Mr.Rajesh Mandhotra, Dy.A.G. Deepak Gupta, J. This appeal is directed against the judgment of the learned Additional Sessions Judge (Fast Track Court), Chamba whereby the appellants have been found guilty of having committed an offence punishable under Sections 302/34 IPC and have been sentenced to undergo life imprisonment and to pay fine of Rs.20,000/- each. In default of payment of fine they have been directed to undergo further rigorous imprisonment for 2 years. The brief facts of the case are that the deceased Rajan was married to one Smt.Sita who is the sister of the three appellants. Sita along with her minor son Surya had come to her parental house at 2 village Jolna on 9.12.2001. Deceased Rajan joined his wife and child at the house of his in-laws on 10.12.2001. These facts are not disputed. According to the prosecution, Rajan wanted to take his wife and child back to his house at Chalwara, Tehsil Jawali. The accused persons, being brothers of the wife, refused to send her with him. Thereafter, on the evening of 11.12.2001 the three appellants along with deceased Rajan are stated to have consumed liquor in their own house. It is alleged that they abused Rajan who did not respond. Thereafter, two of the accused Kuku and Bindu caught the deceased by his legs and arms and accused Subhash brought the weapon of offence i.e. a ‘barchi’ Ext.P-1 from the back of the house and gave a blow with the ‘barchi’ on the left side of the chest of the deceased Rajan. The deceased died on the spot. Thereafter, the three appellants took the dead body of the deceased to the back of their house whereas the wife Sita took her son PW-1 Surya who had witnessed the entire occurrence to another room where he was confined. On the next day i.e. 12.12.2001 the accused persons sent intimation to Amar Singh, PW-3 father of the deceased intimating him about the death of his son. Amar Singh along with Tilak PW-2 and other family members came to village Jolna. The body of deceased Rajan had been placed in the courtyard of the house of the accused. According to the prosecution, when Amar Singh father of 3 the deceased, inquired as to how his son has died the accused persons informed him that on the previous day the three appellants along with the deceased had gone for hunting. The deceased was carrying some ammunition for hunting purpose. The deceased fell down and the explosive substance exploded and as a result the deceased died. The parents and brother of the deceased believed the version of the accused and brought the dead body to their house at village Chalwara. Sita, wife of the deceased, and PW-1 Surya, minor son of the deceased, also accompanied them to their village. Body of the deceased was placed in a coffin and buried near the house of Amar Singh. According to the prosecution, some days later, PW-1 Surya minor son of the deceased informed his grand father that in fact it was the appellants who had murdered the deceased with a ‘barchi’. The accused had threatened him not to disclose the facts to any person. Amar Singh made a written complaint to the Superintendent of Police, Chamba. Even the Deputy Commissioner, Chamba on the basis of certain news items asked the Superintendent of Police, Chamba to get the matter inquired into. The statement Ext.PW-1/A of the minor son Surya was recorded under Section 154 Cr.P.C. by the police at village Chalwara on 2nd March, 2002 and on the basis of this statement FIR No.32/2002 was registered in police station, Chawari. Thereafter, the Investigating Officer PW-20 ASI Kirpal Singh visited the spot of the occurrence and prepared site plan 4 Ext.PW-20/B of the house of the accused persons. The appellants were arrested. Accused Subhash when in police custody made a disclosure statement Ext.PW-6/A and informed the police that he could get recovered the weapon of offence from his house. Thereafter, the weapon of offence was got recovered. Clothes of this accused were also got recovered. Thereafter, the Investigating Officer applied to the Sub Divisional Magistrate for permission to exhume the body of deceased Rajan. Such permission was granted vide order Ext.PW-10/B. The body was exhumed in the presence of a number of local persons and the investigating team as well as PW-10 Dr.D.P. Swami who conducted the post mortem on the said dead body. Site plan Ext.PW- 20/F was prepared by the Investigating Officer of the place where the body was recovered. Dr.Swami opined that the deceased had died because of a single blow on the left side of his chest which could have been caused with a weapon like the ‘barchi’. According to him the injuries found on the body and the holes in the clothes corresponded with each other as well as the weapon of offence. On the basis of the entire investigation the present appellants as well as their sister Sita were charged with having committed offence punishable under Sections 302, 201, 120-B and 34 IPC. They pleaded not guilty and claimed trial. As many as 20 witnesses were examined by the prosecution and after recording evidence and hearing arguments the learned trial Court acquitted Sita but convicted 5 and sentenced the three appellants as aforesaid. Aggrieved by the said order the appellants have filed the present appeal. We have heard Sh.Shashi Bhushan, learned counsel for the appellants and Sh.Rajesh Mandhotra, learned Deputy Advocate General on behalf of the State. Sh.Shashi Bhushan has argued that the FIR was lodged almost three months after the alleged incident took place. This gave sufficient time to the prosecution and the relatives of the deceased to concoct a story. He urges that on this ground alone the conviction is liable to be set-aside. He has further urged that the statement of the minor child who was only 7 years old at the time of incident cannot be relied upon. According to him, there are various improvements, embellishments and contradictions in the statement of this witness and also the other witnesses. He has further argued that even if the statement is believed no case if made out against appellants 2&3. Sh.Bhushan has also argued that even if the entire case is believed at best a case under section 304 is made out against Subhash accused only. On the other hand Sh.Rajesh Mandhotra, learned Deputy Advocate General has supported the judgment of the learned trial Court. There is no manner of doubt that there is delay in lodging the FIR. The murder allegedly took place on the evening of 11th December, 2001. The FIR was lodged on 2nd March, 2002. 6 However, this does not mean, that on this ground alone the accused are entitled to acquittal. When there is delay in lodging the FIR the court may in a given case, acquit the accused if it can be presumed that due to the delay a false and fresh story was concocted to convict the accused. This principle will not apply to the facts of the present case. The parties were closely related. According to PW-2 and PW- 3 they had no reason to disbelieve the version given by the appellants. They came home and buried the dead body of deceased. After some days they were informed by the minor child about the fact that the deceased was murdered by the accused. Thereupon they informed the police and the delay thereafter was on account of the inaction of the police. The present case revolves totally around the statement of the minor child PW-1 and the statement and post mortem report of PW- 10 Dr.Swami. Man may lie but circumstances do not. The statement of the minor child was recorded before the body was exhumed. Admittedly, no other witness except the minor son Surya was an eye- witness to the incident. As time went by, at best, the minor child could have been tutored. However, since the father and brother of the deceased were not present when the incident took place they could not have tutored the child as to what occurred at the time of the incident. 7 Here reference needs to be made to the statement of the minor child recorded under Section 154 Cr.P.C. After giving the introductory facts, the child states that in the evening Subhash Mama, Bindu Mama and Pam Mama @ Kuku and his father consumed liquor. Subhash Mama abused his father. His father did not respond but then his three maternal uncles picked up a fight with his father. Thereafter, Subhash went to the back of the house, brought a ‘barchi’ from there and gave a blow of the ‘barchi’ on the side of the chest of the deceased. Blood started coming out of the wound and his father fell down. Then his three uncles took up his father and took him behind the house. In the meantime his mother and maternal grand mother came and Subhash informed them that the deceased had died. Next day his paternal grand parents and Tilak Chacha along with other family members came to the house of the accused. When his grand father asked the accused as to how the deceased had died then the accused informed his grand father that when they had gone for hunting the deceased was carrying some explosive material in a bag which accidentally exploded resulting in the death of the deceased. The statement of this child is totally corroborated by the statement of PW-10 Dr.Swami and the post mortem report Ext.PW- 10/A. According to PW-10 Dr.Swami, the dead body was exhumed at Dehar Khad in his presence and the presence of the Executive Magistrate, Jawali and others on 7.3.2002 at 11.30 a.m. The body was identified by the father and brother of the deceased. This witness 8 was informed that it was alleged that the deceased had been murdered with the help of a ‘barchi’. The body was in an advanced stage of decomposition and therefore a number of body organs were missing. However, the Doctor found that there was a relatively sharp cut on the left upper part of the chest with 2” x 1” x 4 ½” skin wound reaching to the back left upper chest. He also found that the third left side rib was cut at both the front and back upper side. The direction of the wound was from front to back and corresponded to the size and adjoining cut holes on the jerseys and shirt. According to Dr.Swami this injury on the left upper side of the chest by itself was sufficient in the ordinary course of nature to cause death. He also opined that the injury is consistent with the ‘barchi’ Ext.P-1 which was shown to him. This witness was cross examined in detail. The main cross examination is directed towards the identity of the body. Suggestions have also been put to the witness which he has admitted that there was no corresponding hole on the back side of the shirt and jerseys. Interestingly this witness also found a steel lid in the body of the deceased which had been inserted probably to staunch the wound and prevent blood coming out. The witness has given a clear-cut opinion that the injury could not have been caused by this lid. When PW-1 Surya appeared in the Court he not only stated what had been stated by him in his statement under Section 154 Cr.P.C. but also improved his version. In his statement in Court for 9 the first time he stated that accused 2&3 caught hold of the legs and arms of his father and thereafter his maternal uncle Subhash brought a ‘barchi’ and gave a blow of the ‘barchi’ on the side of the chest of his father. In the statement under Section 154 Cr.P.C. this child had stated that he had told his grand father about the incident after many days but in the statement in Court he states that after 2-3 days of the incident he had informed his grand father about the same. In cross examination he admits that since his father’s death he has been residing in the house of his grand parents. PW-2 Tilak Raj is the brother of the deceased. He has supported the prosecution version. According to him, Surya had disclosed about the incident about 1 ½ -2 months later. He has also stated that the body of his brother was buried near their house in the court-yard. Amar Singh, PW-3, father of the deceased has made a similar statement. However, according to him, Surya had after 10-15 days of the incident informed him about the fact that deceased had been murdered by the accused. He has also stated that he identified the spot where he had buried his son and also identified the body of his son after it was exhumed. He has also proved the fact that the clothes on the body of the deceased were taken into possession by the police. He also states that he had been filing applications to various Departments and had in fact sent applications to the Governor, Deputy Commissioner, Superintendent of Police asking them to take 10 action in the matter. He has denied the suggestion that the body of his son was totally decomposed and could not have been identified. PW-3 was recalled and then stated that after Surya informed him that his father was murdered by his (Surya’s) maternal uncles, he (the witness) did not initially believe this story. However, he along with his wife and other persons went to village Jolna where they were pressurized by the Panchayat and biradri of village Jolna not to file a case but he still filed an application with the higher police officials. PW-4 Omkar Singh is the Executive Magistrate in whose presence the dead body was exhumed and identified. PW-5 Chamkor Singh is the Pradhan of Gram Panchayat Chalwara. He also proves the fact that the body of the deceased was exhumed and was identified. According to him he had also identified the body to be that of the deceased Rajan. PW-6 Luder Mani has stated that when the accused Subhash was in police custody he made a disclosure statement in his presence that he could get the ‘barchi’ recovered. Statement Ext.PW-6/A was recorded in his presence. PW-7 Jaram Singh is a witness to the recovery of the ‘barchi’. He turned hostile and stated that it was the police who led him to the room where the ‘barchi’ was recovered but in cross examination by the Public Prosecutor he has admitted that it was the accused who took them to the room and got recovered the ‘barchi’. 11 The recovery of the ‘barchi’ is also proved by PW-8 Issa. PW-9 Vijay Kumar took photographs Ext.PW-9/A-1 to Ext.PW-9/A-27 and the negatives PW-9/A-28 to PW-9/A-56 of the process of exhumation of the body. He also stated that the body which was taken out was the body of the deceased Rajan which he could identify. PW-11 Narinder Kumar is Reader to the Deputy Commissioner, Chamba. According to him, on the basis of a news item in the Ajit Samachar, the Deputy Commissioner sent letter Ext.PW-11/A to the Superintendent of Police, Chamba for necessary action. Most of the other witnesses are formal witnesses. PW-20 is the Investigating Officer. On account of the delay in lodging the FIR we have scrutinized the prosecution evidence with greater care and caution. Even if it be assumed that the minor child Surya could have been tutored by his grand parents or paternal uncle, the fact is that there could have been no tutoring in respect of the actual incident since none of these other persons were present when the incident took place. The first version of the child in his statement under Section 154 Cr.P.C. is that his mama Subhash had gone to the back of his house and brought a ‘barchi’ and then gave a blow on the side of the chest of his father. His grandfather or Chacha could not have known what was the weapon of offence and how the deceased died. The child could not 12 have been tutored in this regard. This version of the child is fully corroborated by the statement of Dr.Swami PW-10 and the post mortem report. The injury which caused the death was on the left side of the chest and the doctor has clearly stated that the ‘barchi’ in question could have caused this injury. It would also be pertinent to mention that the recovery of the ‘barchi’ had been proved by the prosecution witnesses discussed above. Keeping in view the aforesaid evidence, we are of the considered view that it was accused Subhash who gave a blow of the ‘barchi’ on the upper left side of the chest of the deceased which resulted in his death. The doctor has opined that this injury by itself was sufficient to cause death. Sh.Shashi Bhushan has tried to bring this case under Exception 4 to Section 300 IPC which reads as follows: “Exception 4:-Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender’s having taken undue advantage or acted in a cruel or unusual manner. Explanation- It is immaterial in such cases which party offers the provocation or commits the first assault.” He contends that as per the evidence a sudden fight took place and the deceased was killed in the heat of passion and therefore at best a case under Section 304 is made out. In support of his assertion Sh.Bhushan has relied upon Suresh Sitaram Surve vs. State of Maharashtra, (2002) 10 SCC 28 and Kulesh Mondal vs. State of W.B. (2007) 8 SCC 578. In our opinion, both these judgments have 13 no applicability to the facts of the present case. When a party pleads that it is covered under certain exception then it is for the parties to show that the act which led to the death of the deceased was committed without pre-meditation in a sudden fight in the heat of passion and that the offender did not take undue advantage or act in a cruel manner. In the present case, from the statement of the minor child it is apparent that three of the accused and the deceased consumed liquor together. Thereafter, some fight did take place. According to the child his father was abused by his maternal uncles but his father did not respond. There is no cross examination of the minor child on this aspect of the statement of the child. Thereafter, the child states that the accused Subhash went behind the house to bring the ‘barchi’. The element of the act having been committed suddenly in the heat of passion was lost when the accused went out of the room to the back of the house and collected a sharp edged instrument to inflict the wound. The wound was inflicted on the left side of the chest near the heart. It is apparent that this was a premeditated act, done with intention to kill the deceased. Therefore, the case of Subhash does not fall within the exception. However, as far as the other two accused are concerned, we are of the view that their conviction is not legal and proper. The only thing that Surya has said against the two accused is that they caught hold of the arms and legs of the deceased when Subhash inflicted the 14 blow with ‘barchi’. He had not stated this fact when his statement under Section 154 Cr.P.C. was recorded. This was an improvement made at the time when his statement at Court was recorded. Sh.Rajesh Mandhotra argued that the FIR is not supposed to be an encyclopedia of the facts of the entire incident. This may be true. However, in the present case as we have noted above, Surya is a minor child. His first statement was recorded more than 2 ½ months after the incident took place. The statement in Court was recorded much later. In the meantime he could have been tutored to implicate the other members of the family of accused Subhash. While convicting Subhash we have accepted the testimony of the child witness in so far as it has been corroborated by the medical evidence. There is no such corroboration in respect of the other two accused. We therefore hold that appellants 2&3 Kuku and Bindu are not guilty and acquit them. As a consequence of the above discussion, the appeal filed by the appellant Subhash is dismissed whereas the appeal filed by appellants Kuku and Bindu appellants 2&3 is allowed. Appellants 2&3 are ordered to be released forthwith unless their custody is required in some other case. Before parting with this case, we must observe that the investigation in this case has been very tardy. The judicial conscience of this Court has been shocked by the manner in which the police has handled a case of this gravity. It appears that because 15 the deceased belong to a poor strata of society the police officials were not even interested in investigating the case. There are certain documents on the record which have not been exhibited and which we cannot take into consideration while deciding the case. However, one thing which has been proved on record is that on 5/6th February, 2002 the Deputy Commissioner sent a reference to the Superintendent of Police, Chamba enclosing therewith a news item which appeared in the Ajit Samachar dated 7th January, 2002 for necessary action. Thereafter, the Superintendent of Police, Chamba marked the same to the SDPO, Dalhousie on 11th February, 2002. The FIR, as we have noted above, was recorded on 2nd March, 2002. There is no explanation as to why it took almost a month after the deputy Commissioner had taken notice of the matter to lodge the FIR. PW-3 Amar Singh father of the accused had himself lodged a complaint with the Superintendent of Police, Chamba on 31st January, 2002 and the S.P. Chamba had marked it to the PS/SHO, PS Chawari on 2.2.2002. Why did it taken one month for the FIR to be recorded? In addition to the news report in the Ajit Samachar, we find that the prosecution itself has filed with the challan another news report. Though the name of the paper is not clear, the news report is date lined 31st December. This clearly shows that as early as the beginning of 2002, articles had started appearing in the press that the family members of the deceased were suspecting that the deceased had been murdered. It also appears, though we must make it clear 16 that it is not proved on record that Amar Singh had been making complaints to various authorities. Why did the police remain a mute spectator when newspaper articles were appearing in the press about the alleged murder of the deceased. The police is not expected in such a case to wait for a complaint to be lodged. It can take cognizance of such an offence by itself. In case the deceased had been cremated there would have been no evidence to convict the accused. It was only because he was not cremated but buried that the body could be exhumed. From the record of the case we also find that even during the investigation and the prosecution of the case, the police authorities probably realizing that they were guilty of having slept over the matter were more interested in protecting themselves than getting the accused convicted. This matter requires thorough probe. We,