1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 561 of 2004 along with Cr. Appeals No. 16 & 17 of 2005 Reserved on: 10th March, 2008 Date of decision: 20-3-2008 ____________________________________________________________ i) Cri. Appeal No.561 of 2004. Puran Chand and another. Appellants. Versus State of Himachal Pradesh. Respondent. ii) Cri. Appeal No. 16 of 2005 Lekh Raj Appellant. Versus State of Himachal Pradesh. Respondent. iii) Cr. Appeal No. 17 of 2005 Jeevan Kumar Appellant Versus State of Himachal Pradesh Respondent ___________________________________________________________________ Coram Hon’ble Mr. Justice Surjit Singh, J. Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? yes For the appellants : S/Sh. Naresh K.Thakur, T. R. Chandel & , in above titled appeals Anup Chitkara, Advocates For the respondent: : Sh. P.K.Sharma, Additional Advocate General. _________________________________________________________ Per Surinder Singh, J. All the three appeals, titled above, have arisen from a common judgment of conviction and sentence passed by the learned trial court in Whether reporters of the Local papers are allowed to see the judgment? Yes. 2 Sessions Case No. 43-G/VII/03 decided on 29.10.2004 under sections 147, 452 and 302 read with section 149 Indian Penal Code. Prosecution case: In brief the prosecution case has been that PW1 Vijay Kumar was watching television programme, during the intervening night of 9-10th April, 2003. He switched off his Television around 12 O’Clock and went outside to urinate, he was attracted by the noise of “Bachao-Bachao” coming from the side of the house of Balbir Chand (deceased) and went there. He saw that Balbir Chand was caught hold of and was being given beatings by the appellants and convict Shuka, hereinafter to be referred as the accused persons. He also heard Ravi Dutt (PW3) son of Balbir Chand crying “Dady Ko Maar Diya, Maar Diya”. On hearing the cries, the accused persons threw Balbir Chand in his court yard and ran away. In the meantime, Jyoti Parkash (PW5) and his wife Swaran Kumari, Sanjay (PW2) and Madhu reached there. They noticed the blood, oozing out from the injuries sustained on the head of Balbir Chand. They lifted him from the court yard and laid him on the floor of his room. He was dead. Vijay Kumar (PW!) informed about the alleged incident to the ward member Gurdial Singh (PW6) and Raghubir Singh Pradhan (PW8) of Gram Panchayat Amroh. Pradhan visited the spot from his village Amroh. Thereafter he went back to his village and rang up to the police. Though, the police reached the spot in the morning around 8 a.m. but recorded the statement of Vijay Kumar (PW1) under section 154 of the Code of Criminal Procedure at 11.45 a.m. on 10.4.2003, on the basis of which FIR was registered under the aforesaid sections. The inquest papers were prepared and the dead body was sent for autopsy. The photographs Ex. PW18/1 to Ex.PW18/10 were also taken. The police had recovered two sticks Ex.P/1 and Ex. P/2 from the spot. The site plan Ex.PW/6/C was also prepared. 3 Postmortem report: Doctor Jatinder Sexana (PW4) had conducted the autopsy of the dead body and found antero posterior lacerated deep wound on the middle of forehead measuring 6 cm in length, horizontal lacerated wound on the left side of the forehead measuring 3 cm in length and .5 cm width, lacerated wound over the left eye brow measuring 1 cm, three parallel marks of echymosis with a gapping of 2 cm on chest at the level of .8 to 10 costal region, diffused marks of echymosis on left shoulder and anterior part of both thighs. On removing the skin, multiple commuted fracture of skull was found. On opening the skull, sub dural and sub-erachomoid hemorrhage was present, upper and superior part of the gray matter was found crushed at some places. The Doctor also found that there was multiple commuted fracture of skull wound, except this all other joints and wounds were normal. In the opinion of the Doctor, death was a stroke and shock due to injuries sustained on the skull. The viscera was preserved by the Doctor for its chemical analysis. Its report Ext PX was received. Opinion of the doctor: The cause of death was opined by the Doctor, due to shock by the injuries sustained on the skull. The probable time between the injury and death was given 1 to 3 hours. Post mortem report is Ex.PW-4/B. Recoveries: On 14.4.2003 Shaitan Singh alias Ravinder is alleged to have made a disclosure statement regarding danda, which was allegedly thrown by him in the bushes near to the house of the deceased. On the same day Lekh Raj also made a disclosure statement Ex.PW7/C regarding a danda, pursuant to which police recovered two dandas from the nearby bushes vide memo Ex.PW7/A. Puran Chand accused also made a disclosure statement 4 Ex.PW7/D on 16.4.2003 pursuant to which vide recovery memo Ex.PW7/E a danda was recovered from the bushes near to the house of the deceased. The police took into possession blood stained earth vide memo Ex.PW5/A. A pair of shoes of convict Sukha, bearing the label of ”Gray Mark Wood-land“ was taken into possession vide recovery memo Ex.PW16/E alongwith the shoe-print found on the spot over a plastic sheet which were sent for chemical examination, but foot print on the plastic seat was not found clearly visible for comparison. Motive: The alleged incident is stated to have taken place on account of old enmity, because the accused persons had given beating to Ravi Dutt (PW3) about two months back on which Balbir Chand had given beating to Sukha and Shaitan Singh. Due to this enmity, accused persons are alleged to have conspired and killed Balbir Chand. The police recorded the statements of the witnesses. Convict Shuka is alleged to have made his confessional statement (Ex.PZ) before the Judicial Magistrate, regarding the murder of Balbir Chand and after completing the investigation, the challan was presented in the court for the trial of the accused persons. Trial court findings: Finding a prima-facie case against the accused persons, they were charge sheeted for offences aforesaid, to which they pleaded not guilty and claimed trial. The prosecution examined its witnesses and at the end of the trial all the accused persons were convicted for the offences charged. Each of them were sentenced under section 302 read with section 149 IPC to undergo life imprisonment and to pay a fine of Rs 25000/- and in default of making payment of fine each of them were ordered to undergo simple imprisonment for a period of 2 years. The accused persons were sentenced 5 to undergo rigorous imprisonment for a period of one year under section 147 IPC and to pay a fine of Rs.5000/- and in default to undergo simple imprisonment for six months. All the sentences are ordered to run concurrently. The appellants have assailed their conviction and sentence except Shukha alias Ravinder convict. Admitted Facts: 1. Appellant Jeevan Kumar and convict Shuka @ Swarup Chand, are the sons of Lekh Raj aforesaid. Shuka, convict had made the confessional statement (Ext PZ), before the judicial Magistrate; 2. Appellant Lekh Raj aged about 70, has been suffering from Asthama for the last 20 years and has a mal-united fractured bone of his leg; 3. Appellants Puran Chand and Shaitan Singh are, cousins; 4. The accused-appellants are residents of village Haled, Tehsil Jaswan Kotla; 5. Shuka convict has not assailed his conviction and sentence; 6. The complainant Vijay Kumar (PW1) and the deceased are the residents of village Padar-Pragpur, which is situated at a distance of about 14/15 k.m. from the village of the appellants; 7. Balbir Chand (deceased) was the father of PW3 Ravi Dutt (12 years); 8. Sanjay Kumar (PW2) is the real brother of the deceased and Jyoti Prakash (PW5) is the brother-in-law of the deceased. Submissions made by the learned counsel for the parties in appeal: Shri T.R.Chandel, learned counsel for the appellant Lekh Raj has argued that the prosecution has suppressed the very genesis of the alleged occurrence. The first information recorded in the daily diary Ex.PW13/A, regarding the alleged commission of crime and Ex.PW1/A the statement of Vijay Kumar make the whole story of prosecution a suspect. It is also 6 argued that the prosecution witnesses are close relatives and interested witnesses, their narration is full of contradiction and replete. It requires a close scrutiny. It is also ventilated that the alleged confessional statement (Ex.PZ), alleged to have been made by Shuka convict did not implicate any of the appellants. The investigating agency has left the time and place of the alleged occurrence quite vague. According to the learned counsel, the evidence on record is properly scrutinized, the manner in which the alleged incident is alleged to have taken place stands totally falsified. The improvements and contradictions made by the prosecution witnesses have shaken the very core of the prosecution case. It is also argued that Lekh Raj was aged about 70 years at the time of alleged occurrence and was suffering from asthma, his leg was also fractured mal-united, he was also examined by the medical board. Thus it was not possible for him to cover the distance of about 30 kms, during the night, on foot from his village to the place of alleged occurrence and back. S/Sh.Anup Chitkara and Naresh K.Thakur, learned counsel for the other appellants, while following the arguments of Shri T.R.Chandel, have led us through the evidence on record and tried to point out the discrepancies in the evidence, which according to them, render the entire prosecution case highly doubtful. Contra, Shri P.K.Sharma, learned Additional Advocate General for the respondent-State, while supporting the impugned judgment of conviction and sentence has submitted that statement of PW3 Ravi Dutt, son of the deceased, who was sleeping with him in the room, is self explicit and quite comprehensive inspiring confidence and stands corroborated by PW1 Vijay Kumar, PW2 Sanjay Kumar and PW5 Jyoti Parkash. Thus there is no error in the impugned judgment. We have thoughtfully considered the rival contentions of the learned counsel for the parties and have revaluated the evidence on record. 7 Our findings and reasons therefor: On consideration of the matter, we are of the view that the learned trial court fell in error by holding the appellants guilty of offences charged against them. In fact, the alleged place of occurrence falls in Police Post Terrace, which is under Police Station, Dehra, District Kangra. H.C. Dharam Paul (PW12), was the in-charge of the said police post in the year 2003. On 10.4.2003 at about 7 a.m. PW8 Raghubir Singh, Pradhan had informed H.C. Dharam Paul (PW12) telephonically that some residents of village Krant came in village Amroh during mid-night, around 12 O’clock and started quarreling with Balbir Chand, who died in the said incident and the assailants had run away. Thereafter, HC Dharam Pal contacted Police Station Dehra and visited the spot. Simultaneously, Dy.S.P. also reached there and directed him to go in search of the accused persons and arrest them. PW8 Raghubir Singh, Pradhan of Gram Panchayat, Amroh, has stated in the court that on 10.4.2003 Vijay Kumar (PW1) and Gurdial Singh (PW6) Ward Member came to his house at about 3.30 a.m. and informed him that accused persons had attacked Balbir Chand while asleep and murdered him. Then he went to the spot with them and reached there at about 6.30 a.m. He saw the dead body of Balbir Chand it was only thereafter he rang up to police-post Terrace at about 7 a.m. The police reached on the spot within forty minutes. This information was recorded by Dharam Paul aforesaid in the daily diary, the copy of which is Ex.PW13/A. This means that Raghubir Singh (PW8) Pradhan of the Gram Panchayat, Amroh, who himself is the resident of village Amroh, was fully aware of the place of occurrence, names of the assailants and their village, whereas the appellants are resident of village Haled and not of village Krant. During the investigation of the case, the place of occurrence has been shown in village 8 Padar-Pragpur. But neither the prosecution has explained this major contradiction nor gave any convincible reason for it. Further according to Pradhan (PW8), the police had reached the spot within forty minutes of his informing them, which means that the police was there on the spot by 7.40 a.m. or say at 8 a.m. The Dy.S.P. had also reached the spot, whereas the statement of PW1 Vijay Kumar under section 154 Cr.P.C. was recorded by the police at 11.40 a.m. wherein the details of the occurrence, containing the names of the assailants and their village and the place of occurrence have been mentioned. No reason has been furnished for recording the statement of Vijay Kumar after such a long time and submissions made by the learned counsel for the appellants that Balbir Chand was murdered by some other villagers at a different place and the appellants were not involved in this case. They were implicated due to some past enmity by the complainant party and their relatives, in collusion with the Pradhan aforesaid, assumes importance. Therefore, in view of these allegations their testimonies are required to be closely evaluated and scrutinized against the aforesaid background, in order to find the truth. Ravi Dutt (PW3) is the minor son of deceased Balbir Chand, he was allegedly sleeping in the same room with his father. He has stated that his mother had gone to the house of her parents. He was sleeping on the cot and his father was sleeping on the floor. During midnight at about 12 O’clock when they were sleeping, there was a sound of knocking on the door, his father woke up, switched on the light of the room and also of the courtyard. On opening of the door, he saw the accused persons, present in front of the door, with sticks in their hands. They attacked his father and took him outside the room in the courtyard. His father shouted Bachao, Bachao. He (PW3), thought that in case he would go outside for help, the accused persons would also kill him. Thus, he stood at the door and cried for help “Bachao Mere Dady Ko Maar Diya”. On hearing his voice Vijay 9 (PW!), Swarna, Jyoti (PW5), Madhubala and Sanjay (PW2) came there. On seeing them accused persons fled away from the spot. Thereafter, Jyoti and Vijay lifted his father from the court-yard and kept him inside the room. PW1 Vijay Kumar has stated that Ravi Dutt had shouted from outside the door of his house “Bachao-Bachao Papa Ko Mar Diya”, thereafter he (PW1) made a noise, on hearing him Jyoti Parkash (PW5), Sawrna Devi, Sanjay (PW2) and Madhu came there and lifted the body of the deceased from the court-yard and took him inside the room. PW2 Sanjay Kumar has stated that his house is situated at a distance of about 600 meters from the house of the deceased. He heard the noise of “Maro-Maro”, he came out and went towards the house of the deceased where he saw the accused persons running away after giving beatings to Balbir Chand. He also stated that he had seen the alleged occurrence from his room, there was a light coming from the room of deceased and he had identified the accused persons from his room. He has not stated anything about the light, outside the courtyard. According to PW5 Jyoti Parkash, he was woken up by the sound of sticks during the midnight, he came out and saw in the electric light of the courtyard that the accused persons were giving beatings to Balbir Chand in the courtyard itself. He along with Swarna, Madhubala, Vijay Kumar (PW1) and Sanjay (PW2) came out of the house and went to the house of Balbir Chand. On seeing them accused persons fled away from the spot. Ravi Dutt was crying “Bachao-Bachao”. They lifted Balbir Chand injured and laid him inside the room. He was also confronted with his earlier statement, recorded under section 161 of the Code of Criminal Procedure, wherein there was no mention of hearing the sound of sticks. According to the alleged eye witnesses, they had lifted the injured Balbir Chand from the courtyard to the room inside. It is surprising that clothes of none of the 10 witnesses, who are alleged to have lifted the dead body were stained with blood. Further, according to Hoshiar Singh, ASI, Photographer was also called. He was present at the time of preparing the site plan. As per the photographer (PW18) when he went to the spot, the dead body of the deceased Balbir Chand was lying in the fields, which they lifted from there and kept the same in the room. The prosecution has not disputed this fact by seeking permission to re-examine the witness on this point, so his testimony remains un-assailed. If his testimony is believed then statement of other alleged eye witnesses, who have stated that the injured Balbir Chand was lifted by them from courtyard outside, immediately after the alleged incident is totally wrong. In these circumstances, it transpires that the occurrence has taken place somewhere else and also not in the manner as deposed by the alleged eye witnesses. This fact is also fortified by the fact that there were few drops of blood in the courtyard, whereas seeing the nature of injuries and the photographs, the deceased was in a pool of blood inside the room. Further, he (PW5) and Gurdial Singh Ward Member (PW8) gave altogether a different version about the arrival of the Pradhan on the spot. According to him, the Pradhan (PW8) did not visit the spot when he was informed about the incident by them in his village Amroh, which is at a distance of about 4/5 kms from the house of the deceased. He has stated that on having been informed about the alleged incident the Pradhan (PW8) told them that he did not have any orders to go during the night, therefore, he would visit the spot in the morning. According to Gurdial Singh, Ward Member (PW6), when they went to inform Pradhan Raghubir Singh about the incident, he in turn informed them that it was a night-time and nothing could be done, therefore, he would visit the spot in the morning. 11 PW8 Raghubir Singh, Pradhan, has falsified their version. He has stated that Vijay Kumar (PW1), Gurdial Singh (PW6) came to his house around 3.30 a.m. and informed about the incident. But he did not make mention of the name of Jyoti Parkash (PW5) and Sanjay (PW2). According to him, he had accompanied them and reached the house of Balbir Chand around 6.30 a.m. Thereafter he returned to his village which is 5 kms from the village of the deceased and informed the police telephonically. The above contradictions and inconsistencies in the statements of the witnesses are irreconcilable and make the story of the prosecution all the more doubtful. Even the prosecution has left us in a lurch about the time of death. Though (PW4) Doctor Jitender Sexana, has given the probable time between injury and death between 1 to 3 hours and time between death and postmortem 12 to 24 hours yet he has stated that in order to find out as to when the deceased had taken last meal, the same could be detected from the examination of small and large intestines but there is no mention in the report of post mortem regarding the digestive and non-digestive contents in the small or big intestines. Against column Nos.4, 5 and 6 the Doctor has only mentioned “Normal”. Ravi Dutt (PW3), son of the deceased, has deposed that after the alleged incident his injured father was brought inside, during the night he was taking some breath. He came to know in the morning at 7.30 a.m. when he got up from sleep that his father had died. Further the conduct of Ravi Dutt aforesaid appears to be against the human conduct. According to him, after the alleged incident he had slept during the night as usual and also woke in a routine manner. It is not understood as to how a person can have a sleep, when he knows that his father was seriously injured and taking the last breath after the alleged incident. 12 There is also no document on record to show that the Investigating Officer had ever tried to mention about the place of alleged incident, neither it is mentioned in the site plan nor it has been pointed out anywhere else. His own finding about this fact is absolutely silent. On the close scrutiny of the above evidence, in the totality of the aforesaid circumstances, we are of the view that true genesis of the alleged occurrence has been suppressed. We have also found the testimonies of the alleged eye witnesses highly doubtful and it does not inspire confidence. The motive of the alleged crime as alleged is very weak. Vijay Kumar (PW!) has admitted that a case is pending against him with respect to beating to Shukha convict and Shaitan appellant and the alleged confessional statement Ex.PZ does not at all implicate any of the appellants. The upshot of the above discussion is that the case of the prosecution lacks probity and the evidence put-forth does not prove the offence charged. Therefore, the conviction of the appellants can not be sustained. Conclusion and final order For the reasons aforesaid, in our view, the findings recorded by the learned trial court, convicting the appellants are perverse. Therefore, the judgment of conviction and sentence against the appellants is set aside and their appeals are allowed. Consequently, the appellants are acquitted of the offences charged and they be set at liberty forthwith, if not required in any other case. (Surjit Singh),J. March 20th, 2008(D) (Surinder Singh),J.