IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.Appeal No.518 of 2003 with Cr.Appeal No.336 of 2004 Reserved on : 10th April, 2007 Date of Decision: 27th June, 2007 Cr.Appeal No.518 of 2003 Pappu Ram Appellant Versus State of H.P. Respondent Cr.Appeal No.336 of 2004 Lekh Raj & another Appellants Versus State of H.P. Respondent Coram The Hon’ble Mr. Justice Surjit Singh,J. The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? Yes. Cri.Appeal No.518 of 2003 For the appellant: Mr.Jagdish Vats and N.D.Sharma, Advocates. For the respondent: Mr.D.S.Nainta, Dy. Advocate General. Cri.Appeal No.336 of 2004 For the appellants: Mr.V.D.Khidta, Advocate. For the respondent: Mr.D.S.Nainta, Dy. Advocate General. Sanjay Karol, J. By this common judgment, both the appeals are being heard and decided together as the same arise out of a judgment of conviction and sentence passed by learned Sessions Judge, Chamba. Both the appeals are directed against the judgment dated 29th September, 2003/16th October, 2003 Whether the reporters of Local Papers are allowed to see the Judgment? 2 passed by Sessions Judge, Chamba Division, Chamba, H.P., whereby the appellants have been convicted of an offence under Section 302 read with Section 34 IPC, and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.5000/- each, and in default of payment thereof further simple imprisonment of six months. For the offence under Section 201 read with Section 34, IPC the appellants were convicted and sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.2000/- each and in default thereof further simple imprisonment for a period of 3 months. The case of the prosecution as borne out from the record is as under:- Bihari Lal, originally belonging to Village Patti, Tehsil and Police Station Palampur, District Kangra, a shepherd came to Jalsu Jot, Police Station Bharmaur, District Chamba with his live stock for the purpose of grazing and had his ‘Dera’ (temporary place of shelter in a jungle) at a place commonly known as Uparli Ridli Dhar in Jalsu Jot. He was staying there for the last approximately one month. Adjoining to his Dera was the Dera of Ramesh Chand son of Bodal, who also originally hailed from Palampur, District Kangra. Below his Dera, though at a short distance, was the Dera of Pappu son of Makhauli and adjoining to the Dera of Pappu there was another Dera of Lekh Raj, who also hailed from Police Station Baijnath, District Kangra. In the evening of 27th August, 2001 at about 7 p.m. at Ridli Dhar, accused Lekh Raj alongwith Pappu committed murder of Partap Chand, resident of Village 3 Nayagran, Sub Tehsil Holi, District Chamba in the courtyard of Dera of Bihari Lal (PW-1) in his presence and also in the presence of Ramesh Chand (PW-2). Thereafter the accused persons allegedly carried the body of Partap Chand by tying the same with Danda (long wooden pole) and rope, to the Dera of Karam Chand (PW-3) and Raj Kumar (PW- 4), which is at a distance of 1 ½ Furlong. There they asked the said persons to help them in disposing off the body and on their refusing to do so both the accused persons lifted the dead body and carried the same. While going, the accused persons threatened all the aforesaid witnesses that in case they disclosed about the incident to anybody they alongwith their families would also be killed. A report was entered into daily diary (Ex.PH) on 29.8.2001 at 7.45 p.m. with Police Post Holi, Police Station Bharmaur, wherein it was stated that Jigri Ram (PW-8), who is the husband of President of Gram Panchayat Nayagran, was informed by one Dhani Ram, Foreman, serving in the electricity department that Ram Singh (PW-9) resident of ‘Chaned’, had informed him that Partap Chand of Village ‘Nayagran’ was lying dead at a place known as ‘Buchkari’ and the President of the Gram Panchayat, Nayagran was to be informed so that the matter could be reported to the police. Dharam Singh (PW-19) on the direction of SHO, Police Station Bharmaur, on 30.8.2001 proceeded for spot investigation alongwith Constable Hari Singh and Constable Yoginder Singh (PW-12). After having reached at a place known as ‘Yada’ on 30.8.2001. HC Raj Kumar, C.Amar Singh and Prithi Singh (PW-14) met the 4 police party there and from there all proceeded and reached the place known as ‘Buchkari Tappa’ where the dead body of deceased Partap Chand was found lying, at about 11 a.m. on 31.8.2001. The police party was also accompanied by civilians Jigri Ram (PW-8) and Jat Ram (PW-5). At the spot statement of Bihari Lal (PW-1) was recorded by ASI Dharam Singh (PW-19) under Section 154, Cr.P.C. (Ext.PA). He sent the statement (Rukka) through C.Yoginder Singh (PW-12) for registration of case to Police Station Bharmaur and carried out the investigation at the spot by taking photographs (Ext.P-6 to P-10), (negatives Ex.P-11 to P-15) of the body of the deceased Partap Chand and filled in Inquest report [Form 25.35(1)(B)] (Ext.PQ) and death report [Form 25.35(1)] (Ext.PB). The dead body of the deceased was identified by Tani Ram and Jat Ram (PW- 5). A site plan where the dead body was lying was prepared being Ext.PS and site plan of the place of occurrence was prepared as Ext.PT. The dead body was sent to Primary Health Centre, ‘Garola’ alongwith copy of inquest report (Ext.PQ) and an application (Ext.PP) for getting the post mortem conducted. Post mortem report (Ext.PR) was prepared after the same was got conducted. During the course of investigation, Investigating Officer took into possession the samples of blood stained soil (Ext.P3 and Ext.P4) vide recovery memo (Ext.PD). He also seized one Danda (Ext.P1) having a length of 6 ft. 10 inches and one rope (Ex.P2), which were lying at a distance of about 15 mts. from the dead body vide recovery memo dated 31.8.2001 (Ex.PC). On the basis of statement sent through C. Yoginder Singh (PW-12) to 5 Police Station, Bharmaur, FIR (Ext.PN) was recorded on 31.8.2001. The accused Pappu was arrested on 4.9.2001 and his brother was informed vide memo Ext.PB. Accused Lekh Raj was arrested on 6.9.2001 and his brother-in-law was informed of his arrest vide memo Ext.PW. During interrogation accused Lekh Raj made a disclosure statement dated 9.9.2001 (Ext.PE) in presence of Jigri Ram (PW-8) and Madho Ram (PW-7), on the basis of which the investigation party again proceeded to the spot alongwith accused Lekh Raj and from the site of occurrence got recovered stone (Ext.P5) with which the accused beaten and killed the deceased vide recovery memo dated 9.9.2001 (Ext.PF). All the recovered articles were deposited with MHC Baldev Singh (PW-13). Sealed parcels of blood as well as blood stained earth (Ext.P3, Ext.P4) stone (Ext.P5) and clothes (Ext.P16 to P-20) were sent for chemical analysis and the report with regard to the same is Ext.PO. Jamabandi (Ext.PM) (revenue record) was also got prepared from the Patwari i.e. revenue official. File was handed over to Roshan Lal (PW-17) for further investigation who filed the Challan after concluding the same. The appellants were challaned and after complying with the provisions of Section 207, Cr.P.C. were charged with the offence punishable under Sections 302, 201 read with Section 34, IPC. The accused did not plead guilty and, therefore, were put on trial. In all, statements of 19 prosecution witnesses were recorded by the trial Court. The statements of accused under Section 313, Cr.P.C. were also recorded. No 6 defence evidence was led by the appellants. After considering the entire material on record, the Court below held the appellants guilty of offence under Sections 302, 201 read with Section 34, IPC and convicted and sentenced them accordingly. Learned counsel has assailed the order on the ground that there is an inordinate delay in recording of the statement of the witnesses; FIR was registered after due deliberations and consultation, recovery of weapon of offence, i.e. stone was effected on 31.8.2001; the case of the prosecution and the version of the witnesses is improbable and their conduct is unnatural and the witnesses have contradicted themselves. We proceed to deal as under:- From the statements of prosecution witnesses, it is clear that Bihari Lal (PW-1) and Ramesh Chand (PW- 2) are two eye witnesses, who have seen the accused murdering the deceased Partap Chand and also carrying away his dead body. Karam Chand (PW-3) and Raj Kumar (PW-4) are the eye witnesses, who identified the accused to have brought the dead body of Partap Chand to their Dera and after threatening them have further carried the same therefrom. All the aforesaid witnesses were threatened by the accused that if they were to disclose the incident to anyone else, they would also meet the same fate. Other than these four witnesses (who have seen the murder and body of the 7 deceased) and Jat Ram (PW-5), Rajinder Kumar (PW-7) and Madho Ram (PW-7) there is no other witness who can testify about the complicity of the accused to the alleged offence. There is no circumstantial evidence with which the accused can be linked to the commission of offence. Ram Singh (PW-9) saw the dead body on the basis of which Jigri Ram (PW-8) was informed, who reported the matter to the police. Jat Ram (PW-5) is brother-in-law of deceased. Rajinder Kumar (PW-6) is servant of deceased and Madho Ram (PW-7) is the person in whose presence the statement was recorded and stone, the weapon of offence was recovered. These are the main witnesses on whose testimony the decision of the case hinges. The area where the alleged offence took place, namely, Ridli Dhar/ Buchkari is at a height of approximately 14000 to 15000 ft. and at that height the Sun sets at about 5.30 – 6.00 p.m. in the evening and it becomes dark by 7 p.m. It has come on record that there is deep mist at that height and some times one cannot recognize a person even from 3 to 4 ft. (PW-1). The nearest Village from Ridli Dhar is Village Nayagran, which is at a distance of approximately 50 kms. and from Nayagran the nearest Police Station is Bharmaur, which is at a distance of approximately 100 Kms. from Ridli Dhar. The distance between Nayagran and Bharmaur is also quite long. At 8 the height where the incident is stated to have taken place, habitation is sparse and jungle and meadows are inhabited by shepherds (Gujjars) who flock the area with live stock for grazing purposes. They have their Deras where they temporarily reside for the purpose of grazing their cattle during summer for such period as the climate would permit them. We would firstly examine the statements of the witnesses on the point of motive and recovery of weapon of offence. MOTIVE Bihari Lal (PW-1) has stated in his examination-in-chief that when the accused were giving beatings to the deceased Partap Chand, they were saying “We have made a man of you” (vkt geus rqEgs cUnk cuk fn;k gS). In his cross-examination he has stated that the dispute between the deceased and the accused persons was with respect to the boundary of grazing ground. He, however, clarified to say that dispute regarding boundary never took place in his presence and since the deceased and the accused were mentioning Banna-Banna (cUuk –cUuk) so he presumed that there is dispute of boundary (cUuk). Ramesh Chand (PW-2) in his examination-in- chief has stated that their “might” be dispute of Banna(cUuk) between the deceased and the accused persons. In his cross-examination he, however, 9 clarified that he did not know the cause of quarrel between the deceased and the accused. Raj Kumar (PW-4) in his examination-in-chief has stated that he did not know the bone of contention between the accused and the deceased and Karam Chand (PW-3) has not mentioned anything with regard to the same. Jat Ram (PW-5), brother-in-law of deceased, in his examination-in-chief states that there was a boundary dispute of grazing ground between the deceased and the accused persons, which is the reason for committing the murder of Partap Chand by the accused. He however, admits that he and his brother were living separately since long and Partap Chand even though belonging to Village Nayagran was living in Badriana, since the time of his fore-fathers. He does not mention the nature of dispute or the property in relation to which there was a dispute. In his cross-examination he, however, admits that no dispute ever took place in his presence between the deceased and the accused regarding Banna (cUuk). Rajinder Kumar (PW-6) servant of deceased Partap Chand states that prior to the incident deceased had told him that there is a Banna (cUuk) dispute between him and both the accused and, therefore, he should be alert from them. In his cross-examination he, however, admits that deceased had disclosed the same about 4-5 months prior to the occurrence and there 10 was none present at the time when he told the same nor did he disclose this fact to anybody prior to the occurrence and also to the police when his statement during investigation was being recorded. Careful examination of his statement, in our view, does not inspire confidence. He states that he saw the dead body of Partap Chand at a place ‘Bich Kale Da Tabba’ with injuries on his face, chest and abdomen and blood smeared on the face and that he sent two boys to inform the relatives of the deceased whose names, however, he did not remember. Further from his statement, it is clear that he was working as a care- taker of the live stock of deceased Partap Chand at his Dera at Mochdu Dhar, which is also at a far off place. He mentions that deceased Partap Chand on 27.8.2001 left the Dera at Mochdu Dhar for the shop of Pritam Chand. As there is less habitation at that height and persons residing and their description is normally known to every one. Strangely he does not remember the names of the boys through whom he sent the message but also does not make any further inquiry or investigation after seeing the body or inform any other person living in the Deras including Pritam Chand to whose shop the deceased had gone. He does not disclose this fact of dispute to the police or to any body else. He does not give the description of the property or the boundary regarding which there was a dispute. His conduct, therefore, is 11 quite unnatural and his statement with regard to dispute of boundary also does not inspire confidence. Therefore, we are of the view that the version of the prosecution that there was a dispute between the parties with regard to boundary, the motive behind the murder, does not inspire confidence and is not correct. Recovery of Weapon Now, let us examine the statements of witnesses on the point of recovery of weapon, with which the offence is stated to have been committed. Vide recovery memo (Ext.PF) dated 9.9.2001, stone having length of 6 inches with width of 3 inches from one side and 2 inches from other side bearing slight blood stains on it, was recovered from the courtyard of the Dera of Bihari Lal (PW-1) and Ramesh Chand (PW-2) in presence of Jigri Ram (PW-8) and Madho Ram (PW-7). The recovery is as a consequence of the statement of accused Lekh Raj made under Section 27, Cr.P.C. (Ex.PE) on 9.9.2001. Madho Ram (PW-7) in his examination-in-chief, states that the accused on interrogation had stated that they had caused the death of Partap Chand with stones and thereafter the accused persons led the police party to get the stones recovered. He has identified his thumb impression on the recovery memo (Ex.PF), statement (Ext.PE) and sketch of stone (Ext.PG). His cross-examination contradicts him when 12 he states that the police had met him at ‘Batbi’ in the morning and ‘Batbi’ is at a distance of 22 miles from Ridli Dhar. Then obviously ‘Batbi’ is also far off from Bharmaur where the disclosure statement was recorded. If this was so then how could he be a witness to the disclosure statement (Ex.PE). Quite differently Jigri Ram (PW-8), in examination-in-chief has stated that statement of Madho Ram (PW-7) with regard to recovery of stone was recorded on 31.8.2001. He also states that he did not accompany the police to Ridli Dhar when he was associated by the police for the second time and that the police had obtained his signatures on all the documents including Ex.PE and Ex.PF on 31.8.2001. It has come on record that Ridli Dhar is at a distance of 100 Kms. from Police Station Bharmaur. According to this witness, documents (Ex.PE and Ex.PF) were got signed on 31.8.2001. Thus there is inherent contradiction in the statements of the witnesses, the date of the recovery memos and the date of disclosure statement (Ex.PE). When the witness states that his statement was got signed on 31.8.2001 then obviously the statement dated 9.9.2001 and the recovery memo dated 9.9.2001 are false. Bihari Lal (PW-1) in his cross-examination states that at the time of recording of his statement (Ex.PA) under Section 154, Cr.P.C., he had shown the stones to the police with which the accused had given the beatings to the 13 deceased and another eye witness Ramesh Chand (PW-2) does not mention anything about the same. Further more from the statement of Dharam Singh (PW-19), it is clear that Ex.PE was got recorded by him during the course of investigation in Police Station, Bharmaur, at about seven in the morning. He has admitted that Madho Ram (PW-7) is resident of Kangra, but has stated that he did not know Kangra was at a distance of 200 Kms. from Bharmaur. He admits that people are residing after 1 km. from Police Station Bharmaur. He admits that Nayagran where Jigri Ram (PW-8) resides is at a distance of 50 Kms. from Bharmaur. Why local people who were residing in the vicinity of the Police Station were not involved is intriguing? Both Madho Ram (PW-7) and Jigri Ram (PW- 8) are from far off place. The time of recovery as stated by the witnesses is approximately 4.30 p.m. in the evening. Therefore, in this background the case of the prosecution that the disclosure statement was prepared in the morning of 9.9.2001 and the recovery was effected at about 4 a.m. in the evening on the same day casts doubt on the version of the prosecution. According to him he left the Police Station, Bharmaur, for effecting recovery at about 5.00 a.m. He contradicts that part of his statement where he states that the disclosure statement was made at 7.00 in the morning but also contradicts the statement of Madho Ram (PW-7) who states that he met 14 the police at “Batbi”. After a detailed interrogation carried out throughout night, how the police party alongwith the accused and the witnesses could have walked for a distance of 100 Kms. at that height and rainy season in a hilly terrain is a mystery. One of the witnesses is a resident of District Kangra, a far off place about 200 kms. away. Another witness is resident of Nayagran, which is 50 Kms. walking distance from Police Station Bharmaur. The witnesses have already stated that the documents were got signed on 31.8.2001 itself. Yoginder Singh (PW-12) does not deny that the distance between the Police Station, Bharmaur and Ridli Dhar is 100 Kms but admits that the entire journey is on foot and is covered by walking for about 12 to 13 hours. Importantly Jat Ram (PW-5) also states that police had taken into possession stones, which were 2-3 in number and no document with regard to the same was reduced into writing. Jigri Ram (PW-8) has stated that Madho Ram (PW-7) was with him and the police party. This he is referring to the visit of 31.8.2001 and according to Madho Ram (PW-7) he has visited the site only once. Thus with these material contradictions in the testimony of the witnesses Jigri Ram (PW-8), Madho Ram (PW-7) and ASI Dharam Singh (PW-19) it is clear that the case of the prosecution with regard to recovery of stone is false, concocted and highly improbable. 15 Defence of accused/witness beaten up by villagers Before we proceed to deal with the case of the prosecution, in view of what we have discussed above it is imperative to notice the defence of the accused. From the statements of witnesses, the defence taken is that the accused had left the place of occurrence 2-3 days prior to the date of the incident. Deceased Partap Chand, a resident of Nayagran had been killed by the residents of Nayagran and on the asking of said residents, the witnesses have falsely implicated the accused with the incident with which they have nothing to do. It has come on record that approximately 30 to 35 villagers had visited the spot and given beatings to witnesses Bihari Lal (PW-1) and Ramesh Chand (PW-2). Presence of Pradhan alongwith said villagers before the arrival of the police party on 31.8.2001 has also come on record. According to Bihari Lal (PW-1) ,Pradhan accompanied by 3-4 persons had already visited the spot before the arrival of the police and was searching for the dead body of the deceased for 3-4 days. He, however, has denied the suggestion that had the police not arrived at the place of occurrence the residents of Village Nayagran would have taken his life. Ramesh Chand (PW-2) in his cross- examination has also admitted that one day prior to the incident people from Nayagran had reached the 16 spot and they were also there before the arrival of the police. Karam Chand (PW-3) also admits having met 30-35 residents of Village Nayagran who had come to Ridli Dhar. Not only that he further states that he also met Pradhan to whom he had narrated the entire incident as to how and at what time the accused had approached them. He further admits that 30-35 persons had given beatings to witnesses Bihari Lal (PW-1) and Ramesh Chand (PW-2). Therefore, the statements of witnesses cast doubt on the recording of daily diary (Ex.PH), which discloses that Jigri Ram (PW-8) was informed about the death of Partap Chand by one Dhani Ram, Foreman at Bharmaur on 29.8.2001 at about 5.15 p.m. when he was returning from Chamba where he had gone alongwith his wife Sarestra Devi, Pradhan of the village. Jat Ram (PW-5) has stated that Partap Chand had migrated from Village Nayagran. It has also come on record that family of the deceased resides in District Kangra and not Chamba, that means even though the deceased is originally resident of Nayagran, however, his family resides at a distance of approximately 200 Kms. and he used to bring his live stock for grazing to Ridli Dhar in Chamba district. From the aforesaid statements, thus, it is clear that presence of residents of Village Nayagran at the place of incident and their giving beatings to the witnesses, presence of Pradhan and their 17 searching for the dead body of the deceased at least 2-3 days prior to the date of arrival of the police party at the spot is thus established. Jagiri Lal (PW-8) husband of Smt.Sarestra Devi, President of Gram Panchayat, Nayagran has been referred to as Pradhan by the witnesses. A suggestion though denied has been put to the witnesses in this regard also. The version of Bihari Lal (PW-1) and Ramesh Chand (PW-2), therefore, is not the first and correct version as has been stated in the Court. That they were given beatings by the villagers in fact raises a finger of suspicion towards them. It is also for this reason that doubt is cast with regard to the case of the prosecution and the version of the witnesses. Recording of Rukka and FIR It is important to now examine