IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA 1.Cr.Appeal No. 7 of 2010. 2. Cr.Appeal No.36 of 2010. Date of Decision:14.3.2012. _______________________________________________ 1.Cr.Appeal No. 7 of 2010. 1.Rakesh Kumar son of Sh. Hachhu Ram, Resident of Chanauta, Police Station Sarkaghat, District Mandi, H.P. ……Appellant. Versus: State of Hmachal Pradesh. ….Respondent. _________________________________________________ 2. Cr.Appeal No. 36 of 2010. Manjeet Singh son of Sh. Mahinder Singh, R/o Lalpur, Police Station Mahalpur, District Hoshiarpur, Punjab. …Appellant. Versus. State of Himachal Pradesh. …Respondent. Coram: Hon’ble Mr. Justice R.B.Misra, Judge. Hon’ble Mr. Justice Dev Darshan Sud, Judge. Whether approved for reporting1? Yes. For the appellant: :Mr.M.S.Guleria, Advocate. For Respondent: :Mr.R.K.Sharma, Sr.Addl. Advocate General with Mr.Rajinder Dogra, Addl. Advocate General. Dev Darshan Sud, J. These appeals have been preferred by the appellants Rakesh Kumar and Manjeet Singh against the judgment and sentence Whether reporters of Local Papers may be allowed to see the judgment?.yes. 2 of the learned Sessions Judge, Mandi, convicting them for offences under Sections 302 read with Section 34 of the Indian Penal Code sentencing them to life imprisonment and fine of Rs.10,000/-, in default of payment of fine to further undergo rigorous imprisonment for one year. The appellants herein alongwith eight other accused were arraigned before the learned Sessions Judge for the murder of Manoj Kumar, who was found dead lying face down in front of hotel River Bank. 2. The prosecution case in brief is that on 9.4.2008 at around 11.10 p.m., PW19 Sh.Dandu Ram, SI, Police Station, Mandi accompanied by HHC Mani Ram and one constable were on patrol duty at Pulgharat. They received information from Sh.Yaqubkhan M.C. Police Station Sadar, Mandi, that some persons were quarrelling near River View Bank hotel. He along with the police party reached the spot at around 11.45 p.m. and noticed a person lying face down in the drain. He recorded the statement Ext.PW1/A of PW1 Sh.Ramesh Chand alias Nikku, complainant under Section 154 Cr.P.C on this basis, F.I.R. No.168/08 dated 10.4.2008 Ext. PW21/A under Sections 302/34 I.P.C. was recorded at the Police Station Sadar, Mandi The gist of the State is that the complainant was working as Masalachi (employed for cleaning utensils) at hotel River Bank for the last about three years. On 9.4.2008 at around 10.30 p.m. when he was in the kitchen, he heard people quarreling on the road side. He along with other employees went to the spot and noticed four persons were beating up the deceased Manoj Kumar. They had come to the spot in car No.HP-52A- 1868 which was parked in front of the hotel. In the meantime, four local residents of the area came there on a scooter and rescued Manoj 3 Kumar from these persons, who were the Manager and employees of the liquor vend. Manoj Kumar told the local persons that he knew his assailants and that his scooter was parked near the liquor vend. He told that he would be going to his house on his own. He further states that he saw Manoj Kumar running away from the liquor vend and being chased by these persons in a Mahindra jeep. One of them was holding a ‘bat like danda’. The case then proceeds that the jeep driver and these two persons caught hold of Manoj Kumar in front of the hotel and beat him up by inflicting blows on his head and face. As a result, the deceased fell down in a drain on the roadside whereupon he informed the owner of the hotel PW7 Sh.Kirti about the incident. He identified these assailants as Sh. Deepak driver and two other persons whom he could recognize but did not know the name. 3. Manoj Kumar succumbed to his injuries; one broken handle of the bat was lying near the dead body which was recovered. The statement was sent to the Police Station where it was recorded as F.I.R.No. Ext. PW21/A. The photographs of the scene were taken and proved on record as Ext.PW19/A-1 to PW19/A-9 including the negatives Ext.PW19/A-10 to PW19/A-20 and spot map Ext. PW19/B. Blood stained soil and broken base ball bat Ext.P1 were also taken into possession. Inquest report Ext.PW9/A and Ext.PW9/B was prepared and autopsy of the deceased was conducted at Zonal Hospital, Mandi by PW9 Dr. Jiwa Nand Chauhan. Accused Girdhari Lal, Dila Ram, Hans Raj, Jiwan Kumar, Deepak, Rakesh Kumar son of Sh. Hari Singh, Baldev, Rakesh Kumar son of Sh.Hachhu Ram and Yashpal were arrested. Accused Rakesh Kumar son of Sh. Hachhu Ram was sent to judicial custody to enable his identification. Mahindra Bolero Jeep No. 4 HP.33-9280 and Alto Maruti Car No.HP-52A-1868 used in the commission of the crime were taken into possession. On the objects sent for forensic examination, the F.S.L. laboratory found that base ball bat which was alleged to be the weapon of assailants, shirt of the deceased and the blood preserved from the Ahatha (which is a place where people consume liquor) contained blood of ‘A’ group which was that of Manoj Kumar. Human blood was not found on the underwear etc. of Baldev accused No.8. The viscera of the deceased was found to have 136.37 mg% alcohol without any poison. In these circumstances, accused Jiwan Kumar, Rakesh Kumar son of Sh.Hari Singh and Hans Raj were challaned for offences under Sections 302, 147,148,149 and 212 IPC and accused Dila Ram, Deepak, Girdhari Lal, Yashpal, Rakesh Kumar son of Sh. Hachhu Ram, Baldev and Manjeet Singh alias Commando also challaned for offences under Sections 302, 147, 148 and 149 I.P.C. The prosecution produced 24 witnesses whereas in defence, two witnesses were examined. On conclusion of the trial, only the appellants were found guilty and were sentenced for the offences as charged. 4. To prove its case, the prosecution relied upon the evidence of PW4 Raju, who is the star witness. He stated that he was the owner of Mohindra Pick-up No. HP34B-0338 and used to transport scrap and waste material in his vehicle. He used to sell the waste material to one Nittu ‘Kabari’. On 9.4.2008, Nittu (who has not been produced in evidence) asked him on telephone to collect the payment due to him. When he reached at the place of occurrence, he saw 4/5 persons beating up one person. He did not stop there but proceeded towards the shop of Nittu ‘Kabari’, who paid him Rs. 25,000/- and 5 informed him that remaining amount of Rs.15,000/- would be paid to him on the next day. On his return journey, he saw that one person holding his arm who was running from the liquor vend towards Hotel River Bank was being chased by 2/3 persons. They were running in the middle of road and the person running ahead fell down on the road. When he got up, the second person gave a blow with a bat on the head of the person who was running and that person fell down into the drain. He identified this bat as of sky blue colour. He says that the person, who had attacked, was wearing white colour shirt, blue jean pant and white shoes. He identified these persons in Court as Rakesh Kumar and Manjeet Singh. He says that the persons, who were chasing the deceased, were identified by him in the headlights of his pick-up. He then describes the assault by saying that accused Rakesh Kumar pushed Manoj Kumar and thereafter accused Manjeet Singh gave a blow on the head of Manoj Kumar with a bat. He says that he was frightened and did not interfere in the quarrel which he thought was a small matter and would be sorted out by these persons. In his cross-examination, he submits that his statement was recorded on 1.5.2008 when he returned from Jammu and Kashmir. He says that he narrated this fact about the fight to his maternal uncle Sh.Nagu (not produced in evidence) on 27th/28th April, 2008. He then says that Nittu Kabari had asked him on telephone to collect the payment. He did not state to the police that a sum of Rs.25,000/- was taken by him from Nittu Kabari and that the remaining amount would be collected on the next day. He says that he had stated before the police that a quarrel had taken place between the liquor vend and Hotel River Bank when he was going to the shop of Nittu kabari but this fact is not recorded in 6 the statement made to the police. He then states that he did not state to the police that 4/5 persons were beating one person which fact was stated for the first time in Court. He says that identification was conducted in the jail in the month of May, 2008. He denied the suggestion that the photographs of the accused Manjeet Singh were shown to him before test identification parade. He says that he stayed at the house of Nittu for 4/5 minutes and returned home at around 11.15 p.m. on the same day. He then admits that he never told anybody about the incident including his family members and learnt about the death of Manoj Kumar on 28.4.2008 when he returned from Jammu. He was called by the police, who according to him, might have known from Raju and Nagu that he was present on the spot. From 10.4.2008 to 28.4.2008, he never informed anybody about the occurrence. 5. PW1 Ramesh Chand, complainant was declared hostile as he refused to support the case of the prosecution. He was cross examined at length by the Public Prosecutor. In cross examination by the counsel for the accused, he says that the police had forced him to become a witness in this case and threatened that in case he does not state, whatever they wanted him do, he would be involved in false case(s) of possession of contraband (charas). It is out of fear that he stated whatever the police wanted him to do. Then he says that it is a fact that liquor vend is not visible from Hotel River Bank. On the fateful day, there was a party being celebrated in Hotel River Bank. He says that it is situated on the National Highway. He has signed his name in Hindi but cannot read or write Hindi. Ext.PW1/A was not read over and explained to him. He states in cross examination: 7 ”The police who conducted the investigation forcibly made me witness of this case and the police officials also threatened me that in case I do not become witness of this case, he would plant a charas case against him and would arrest me. Therefore, due to fear of the police I left my job of the hotel River Bank and now I am at my native village.” 6. PW5 Hem Singh, Govt. Contractor, was examined in support of the prosecution case. He says that he was going towards Sauli Khad on a scooter at around 9.45 p.m. on the fateful day. Deep Raj and Bhupender were pillion riders with him. Vikas Kapoor had come in his car and they had dinner in Roti Restaurant in Sauli Khad. When they were returning to Mandi, they saw a number of persons out of whom some were beating up Manoj Kumar, who was asking for help to save/ rescue him from their clutches. He says that they (he and the persons accompanying him) intervened and rescued the deceased. In the meantime, the assailants boarded a car and went away from there. Thereafter, Manoj Kumar thanked them. He was asked by this witness and his companions as to whether he required any help and that they could drop him at his house but he (deceased) declined saying that he could manage on his own. He then says that when he was driving to Mandi, there was a police Nakka where he was stopped and he informed them that a quarrel had taken place at Sauli khad and they had rescued one Manoj Kumar. He is categoric when he says: “I cannot identify those assailants nor were they personally known to me. I cannot identify them today in the court as there was complete dark on the road.” 7. At this stage, he was declared hostile by the prosecution. He was cross-examined by the prosecution at length in order to test the veracity of his statement. He stated that there was a pole for 8 street light at the Sauli khad but there was no light at that time. He admits that Manoj Kumar was personally known to him. Then he says that he made no statement to the police that four persons were beating Manoj Kumar or that D.R.Sharma, Manager and his three workers Hans Raj, Rajesh Kumar and Girdhari were beating the deceased. He denied the statement portion A to A of Ext.PW5/A having been made by him. He then says when he was cross-examined by the defence: “When I rescued Manoj Kumar from the assailants Manoj Kumar was drunk. The assailants were several who were beating Manoj Kumar”. 8. PW6 Beer Singh is a retired Professor, who is residing in the flat with his son at Sauli khad. He says that on 9.4.2008, he along with his wife were at the house of his friend on Jail Road Mandi. He was dropped home by his friend. At around 10.30 p.m., when he was passing by the liquor vend at Sauli khad, he heard loud noise of people quarrelling inside the residential room behind and adjoining the liquor vend. He says that he resides in the top floor of the same building in which there is liquor vend. He dropped his wife at his residence and then went down to find out what was the reason for the quarrel. When he entered the room, he saw 4/5 employees of the vend and one ‘gentleman’ sitting there. On his questioning, the employees of the liquor vend told him that this ‘gentleman’ was quarrelling with them. He then says that he asked this person to go away from the room otherwise he would inform the police. On which, he (‘gentleman’) walked away from there. He did not say anything after that. Next day, the police came to the locality and he was asked by the police with 9 respect to the incident which had taken place there. He says that he was present during the investigation and blood was collected from the kitchen situated below the liquor vend ‘Ahatha’ (which is a place where people consume liquor). The sample of blood was taken by scraping the floor of the Ahatha which was taken by the police and sealed separately vide memo Ext.PW6/A which was signed by him and one Bhup Singh. He was unable to identify the deceased from the photographs shown to him in the Court nor he could identify any of the accused person in the Court as to whether they were the person(s) who were actually engaged in the brawl with the deceased. In cross- examination, he says that he did not see any of the employees of the vend chasing the deceased so long as he was present in the vend and he did not even see any vehicle on the road as he was inside the vend. 9. PW7 Dhabal Kirti is the owner of the River Bank Hotel, where the incident occurred. He resides in the ground floor of that hotel which is a five storeyed building. He says that the Chowkidar informed him on the intercom at around 12.00 pm. mid night that there was some noise on the road side in front of the hotel. He went up and called the police informing them that some kind of quarrel had taken place on the open road. Next morning at around 3.30/4.00 a.m. the police came to the spot and inquired from him as to who had called them during the night. He says that there was a body lying on the road and the police was inspecting the spot. The police collected blood etc. which were taken by them. He then says that he was informed about the rumpus by the chowkidar Ramesh Chand but he was never told that one person, who was lying in the drain, was beaten up by the employees of the liquor vend. He was declared 10 hostile. He was cross-examined by the prosecution as also the defense. Nothing material has emerged from his evidence to implicate the accused. 10. PW8 Parveen Kumar was associated during the investigation by the police. He was declared hostile since he has resiled from his entire statement made to the prosecution. PW9 Dr.Jiwa Nand, has proved on record Ext.PW9/A which is the post mortem report. PW10 Bihari Lal was the taxi driver, who says that neither the accused was known to him nor any of them hired his taxi on 10.4.2008 and he again stated that he does not remember that anybody had hired it. He was declared hostile and then again cross- examined. He admits that on 10.4.2008 some persons approached him for hiring his taxi but he could not identify those persons. PW18 Smt. Gurmit Kaur, Judicial Magistrate, was associated with the identification parade. She admits in her cross-examination that the accused Manjeet Singh had stated before her that when he was taken to hospital without his face covered. Then she admits that accused Manjeet Singh had told her that when he was in police custody, his photographs were taken by the police and that these photographs were widely circulated to be published in the Newspapers. She says that when the identification parade was conducted, Manjeet Singh was standing along with other inmates of the jail and their bodies except face were covered with blankets and then witness PW4 Raju was asked to identify Manjeet Singh. He did not point out any identification mark but simply pointed towards him. Before the test identification parade, the police officials were inside the jail and thereafter when the parade was conducted, they were asked to leave the jail. PW4 Raju was identified 11 to her by the police officials. She did not associate any other witness in the test identification parade. PW4 Raju was brought to the jail by the police after she had reached there. This is the entirety of the evidence excluding the evidence of police personnel who have been associated with the investigation. 11. But we now turn to the evidence of PW23 Sh.Rajesh Kumar, Dy.S.P.. He was at the relevant time posted as Station House Officer, Police Station Sadar, Mandi. The case was handed over to him for further investigation by Sh. Ashok Kumar, I.P.S. He says that the statement of PW4 Raju was recorded on 1.5.2008. The accused have denied the entire occurrence and have simply stated that they are innocent. In defence, DW1 Smt. Salochana Devi, who was Assistant Librarian, District Library, Solan. She proved on record Ext.DC with news item dated 4.5.2008. DW2 Birbal Singh states that he works as a press photographer and the photographs of accused Manjeet Singh was published by him on 3.5.2008 and sent for publication. He was called by the police at the Zonal Hospital, Mandi which is a public place. He was cross-examined by the Public Prosecutor but they could only ascertain that he was taking photographs regularly. 12. The point which the learned counsel for the appellant urges is that the photographs have been widely circulated and in these circumstances the identification parade which was held, would loose its significance. It is on this evidence when we turn to the finding of the learned Sessions Judge, who has convicted both the accused. 13. Adverting to the evidence, the learned Court holds that the evidence of the complainant PW1 Ramesh Chand and PW4 Raju is sufficient to convict both the accused as it is reliable and credit worthy. 12 The learned court first considers the evidence of PW4 Raju to conclude that he had actually seen the accused beating up the deceased and then identifying Manjeet Singh on 13.9.2008. 14. Adverting to the other evidence on the record, the learned Court holds that on the evidence of PW1 Ramesh Chand complainant and PW2 Tek Chand, who was working as waiter in the River Bank Hotel;(they were declared hostile) because the only thing which they said was that they saw about 30/35 persons quarreling outside the hotel, PW3 Satya Pal, who was also working as a waiter in the same hotel again says that there were 30/40 persons outside the hotel engaged in a quarrel but there was no fight, PW5 Hem Singh, who was a Govt. Contractor, established that there was a quarrel taking place outside the hotel. Adverting to the statement of PW5 Hem Singh, who was the person, who rescued the deceased Manoj Kumar, the learned court then holds in the judgment that: The crux of his evidence points to one thing that Sh.Manoj Kumar was beaten and was rescued by him and his companions. Though the role of the accused in beating Sh.Manoj Kumar is not proved, yet, it points out that there had been some altercation going on between some individuals and Sh. Manoj Kumar, who was also drunk.” 15. This is the finding in relation to the assessment of the witnesses. The learned court then adverts to the statement of PW4 Raju and says that the fact that he did not disclose the occurrence to the police for a long time does not itself indicate that what he is stating is not the truth but the delay occurred only for the reason that he did not want to get involved in the case. The learned Court then proceeds to convict both the accused after holding that their identity 13 has been established during the test identification parade conducted by the learned Judicial Magistrate and that the percentage of alcohol in the blood of Sh.Manoj Kumar deceased as per the F.S.L. report was 136.37 mg% which, in fact, proves that he was drunk. But this fact, according to the Judge, does not in any manner grant license to anybody to kill him. The learned Court notices this fact only to hold that this is no mitigating circumstance for assaulting him. The Court then holds that the prosecution case, that after assaulting the deceased, accused Manjeet Singh fled from the spot and went to Kiratpur was also not established as PW10 Bihari Lal had resiled from his statement. The Court holds that the identification of accused Rakesh Kumar was conducted as PW1 Ramesh Chand did not identify this person and, therefore, they got PW4 Raju to identify the accused. In conclusion, the learned Court holds that the participation of the accused Jiwan Kumar, Hans Raj, Rakesh Kumar son of Sh. Hari Singh, Dila Ram, Deepak, Girdhari Lal, Yashpal and Baldev in the commission of the offence is not proved from the evidence of the witnesses. In order to arrive at its conclusion, the learned court considered the evidence of PW19 Dandu Ram and PW20 SHO Ashok Kumar to hold that: “.................. the evidence does not make out as to what was the reason for making the police officials speak on any aerial on this score.” (whatever that means) . 16. It is on these reasons that the accused stands convicted. We have heard rival submissions made on behalf of the learned counsel appearing for the parties. 14 17. At the outset, we do express our surprise that the learned Judge, glosses over the evidence of PW5 Hem Singh and PW6 Beer Singh, who were also eye witnesses to the brawl. We find from the evidence that Hem Singh had seen brawl on the road involving the deceased, he was known to the deceased Manoj Kumar and this witness along with Bhupender, Deep Raj, Vikas Kapoor had dinner at Roti restaurant, rescued the deceased who said that he was perfectly alright and did not want to be escorted home. He also says that he could not identify any of the assailants.