1 HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.651 of 2000 Decided on: November 25, 2010. State of H.P. …Appellant. VERSUS Surinder Singh Giani ….Respondent. Coram The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?. For the Appellant: Mr.R.K. Sharma, Sr. Additional Advocate General For the respondent: Mr. Varinder S. Rathore, Advocate Surinder Singh, Judge (Oral) Respondent was tried and acquitted for the offence punishable under Section 302 of IPC, for the murder of one Sunil Kumar. Thus, the State felt aggrieved by the impugned judgment of acquittal passed by the learned Additional Sessions Judge-II, Kangra at Dharamshala in Sessions case No.6-N/VII/99 decided on 22.7.2000, filed the instant appeal. 2. In short, prosecution story can be stated thus. The respondent, a resident of Jallandhar (Pb), was 2 running a tyre repair shop in Milwan Bazar, Tehsil Indora. PW-2, Ravi Kumar and Santokh Singh (PW-3), both were friends. On 24.7.1998, they came together to Milwan Bazar. When both of them were sitting in the scooter repair shop of Sarvjeet (PW-4. They took tea. Thereafter Santokh Singh requested PW-2 Ravi Kumar to drop him in jeep at his house. When both of them had just reached near the jeep, in the meantime, respondent came on his bicycle and accidentally hit on the side of jeep. (PW-2) Ravi Kumar protested. On this, respondent got infuriated and started abusing him. Deceased Sunil Kumar, who was standing nearby, intervened. Respondent also started abusing Sunil Kumar. Sunil Kumar objected to it. On this, respondent allegedly took out his ‘Karpan’ from its sheen and dealt a blow on the neck of Sunil Kumar which caused a bleeding injury. Sunil Kumar fell down and shouted for help. On this, Ravi Kumar covered the body of Sunil Kumar by lying upon him. Respondent also gave ‘Karpan’ blow which hit back of Ravi Kumar. On hearing noise, many persons assembled on the spot. 3. Sunil Kumar, injured, was removed to the hospital by Santokh Singh (PW-3) Sham Lal (PW-6) and 3 Darshan Lal (PW-12). Later in the hospital, he was declared dead. 4. Another injured Ravi Kumar was admitted for the treatment of his injury in the hospital at Mukarian. (PW-14) ASI Om Parkash was already present in the hospital in connection with an accident case. On coming to know about the said incident and the death of Sunil Kumar, he sent a wireless message to Police station, Indora. Thereafter, (PW-15) SI Parkash Chand reached hospital and recorded the statement Ex PW8/B of PW-2 Ravi Kumar under section 154 of Cr.PC. The Investigating Officer prepared the inquest report Ex PW-1/B and the dead body was sent for autopsy to civil hospital, Nurpur. 5. Police recorded the statement of eye witnesses and on completing the investigation of the case, challan was presented before the court for trial of the respondent. The respondent was accordingly charge sheeted for the offence aforesaid to which he pleaded not guilty and claimed trial. 6. The prosecution examined its witnesses and the respondent was also examined under section 313 of Cr.PC. He admitted his presence at the time of alleged incident, but he alleged his false implication in the case. 4 According to him, at the time of alleged incident, it had gone dark. He was attacked by the deceased and he struggled a lot to extricate himself from his clutches. On hearing the commotion, about 25/30 people gathered there who had came from the side of a liquor vend. At that time, deceased was threatening him proclaiming that he would not spare him at any rate. Apprehending his death, he rushed towards other ends of the bushes. Persons who had gathered tried to rescue him. At that time, it had become fairly dark. The deceased might have been hit by someone from the crowd. But, however, he could not explain the injury suffered by Ravi Kumar and denied having been inflicted by him. When called upon to enter his defence, he did not lead his evidence in defence. 7. At the end of trial, he was acquitted by the learned trial court, on the ground that the alleged eye witnesses of the incident, namely, PW -2 Ravi Kumar, PW-3 Santokh Singh, PW-4 Sarvjeet Singh did not support the case of the prosecution as they turned hostile to the prosecution. The statements of PW-6 Sham Lal and PW-12 Darshan Lal, both uncles of the deceased, did not inspire confidence for the reasons that although they were 5 available to the police at the earliest when the deceased and Ravi Kumar were hospitalized. They did not make any statement, whereas their statements came to be recorded on 26.7.1998 under Section 161 Cr.PC as eye witnesses of the incident. Thus, relying upon the judgment of the Apex court in Ganesh Bhavan Patel and another Vs. State of Maharasthra AIR 1979 SC 135 the learned trial court did not put any reliance upon their statements. As such, respondent was acquitted by giving him benefit of doubt. 8. Sh. R.K. Sharma, learned Senior Additional Advocate General for the State strenuously argued that both the alleged eye witnesses including the informant did not support the case of the prosecution but the learned trial court was not justified to hold that statements of PW-6 and PW-12 were not reliable and it requires reappraisal dispassionately. He further submitted that if their statements inspire confidence, the respondent deserves to be convicted for the offence of murder. 9. Contra, Sh. V.S. Rathore, learned counsel for the respondent supported the impugned judgment of acquittal passed by the learned trial court and further ventilated that witnesses PW-6 and PW-12 both were 6 available to the police at the earliest and very initial stage, but they did not come forward and got recorded their statements about the alleged incident, which means that are got-up witnesses. He also ventilated that the maker of the FIR is injured Ravi Kumar. He did not support the case of the prosecution. He had named PW-3 and PW-4 as eye witnesses in the aforesaid FIR. Even they were declared hostile as they did not support the case of the prosecution, but the name of PW-6 and PW-12, aforesaid neither did find mentioned in the FIR nor the delay in recording their statements by the police stands properly explained. Thus it casts cloud of suspicion on the credibility of their statements which was rightly rejected by the learned trial court. 10. We have given our thoughtful consideration to the rival contentions of the parties and have carefully reappraised the evidence on record. On reappraisal of evidence, we concur with the submissions made by the learned counsel for the respondent. The reason therefor are obvious. 11. As a matter of fact, FIR came to be registered at the instance of PW-2 Ravi Kumar, an injured witness. Although he stated that on the day of alleged 7 incident at about 7.30 PM, he was present in the shop of PW-4 Sarvjeet Singh, scooter mechanic in Milwan bazaar. At that time, Santokh Singh was also present. The shop of uncle of the deceased (PW-6) Sham Lal, meat seller, was nearby. He(PW-2) took tea while sitting in the shop of Sarvjeet Singh, thereafter they entered the jeep for going towards their village. Santokh Singh was on driving wheel. Respondent was not known to this witness, but according to him, at a distance of about 3 feet from the jeep, respondent and deceased were fighting with each other. Parna which was worn around the head of the respondent fell around his neck. It was caught hold tightly by the deceased and pulled him down and dragged him to the other side of the road and both of them fell in the bushes. Thus, a huge noise was created. A large number of people had gathered there. PW-2 tried to pick up Sunil Kumar who was lying on the ground, but somebody from the crowd hit him on his neck with a sharp edged weapon. Number of people were trying to take out Sunil Kumar. Whereas, on receiving the injury, PW-2 fell down and became unconscious. Thereafter he did not see anything. He was declared hostile and was meticulously cross examined by the learned Public Prosecutor with the 8 permission of the court, but nothing material could be extracted from him. He maintained his version as aforesaid, but did not utter even a single word that he as well as the deceased were hit by the ‘Karpan’, by the respondent as alleged in the prosecution. He admitted that everything happened in very quick succession. He further stated that on the statement of Ex PW-2/B, his signatures were obtained by the police at his residence, but denied its contents when confronted with it. 12. In the cross examination conducted by the learned counsel for the defence, he also stated that when he reached near the bushes, large number of persons had surrounded Sunil Kumar. PW-6 Sham Lal and PW-4 Sarvjeet reached the spot after his arrival. 13. PW-3 Santokh Singh did not say anything about the implication of the respondent, rather he stated that he had an injury on his leg and did not go towards the bushes. Although according to him, Ram Kumar and Sham Lal, etc. had gone there and many people had gathered on the spot. He admitted in his cross examination that respondent and some persons also started quarreling in the crown and he did not know as to who separated them in that Melee. Both Sunil Kumar 9 and Ravi Kumar had sustained injuries and it was dark, therefore, they could not see the respondent while reliving himself from the spot. Similar is the statement of PW-4 Sarvjeet Singh, which is of no avail to the prosecution. 14. It is a settled law that the statement of hostile witnesses cannot be overboard and both the parties can make use of the statement of such witnesses to the extent it helps them. Insofar as the aforesaid witnesses are concerned, whose names did also find mentioned in the FIR, have not supported the case of the prosecution. Rather by preponderance of probabilities, as set out by the respondent in his case and also stated while explaining the circumstances under Section 313 of Cr.PC go consistent therewith which causes doubt in the prosecution version. Thus, we are left with the statement of PW-6 Sham Lal and PW-12 Darshan Lal. As already stated, their names did not find mentioned in the FIR. PW- 6 was running a meat shop in the same market and according to PW-2, PW-6 had reached the spot after he reached there, meaning thereby even he (PW-6) did not see the incident. The evidence also suggests 25/30 persons had gathered on the spot. It is worthwhile to 10 mention here that PW-6 as well as PW-12 are closely related to the deceased. Both stated when examined before the learned trial court that when the injured and PW-2 Ravi Kumar were taken to the hospital, they were there with them and remained throughout the night in the hospital. If they were the witnesses of the alleged occurrence, it is not understood as to why they did not make the statement to the police with due promptness. Even till 26.7.1998, it was not known whether they had witnessed the alleged incident or not. Witnessing the incident is something different than appearing on the scene of crime after it has been committed. In the instant case, PW-2 was the material witness who had also received injuries. Even he was not sure as to who had inflicted injuries at the relevant time. PW-6 and PW-12 aforesaid also stated that they had made the statement to the police on 24.7.1998 as well as on 25.7.1998. But when during the trial court, learned counsel for the respondent requested to supply such statements, neither it was found in the record nor were available with the prosecution. When PW-15 SI Parkash Chand was examined, he flatly denied having recorded their statements on the aforesaid dates. He simply stated that 11 their statements were recorded only on 26.7.1998, i.e. after two days of the alleged occurrence. 15. In Ganesh Bhavan’s case (supra), Apex court held the delay of even few hours, simpliciter, in recording statement of eye witnesses as serious infirmity in the prosecution case vis-à-vis facts involved in that case. 16. Normally, in a case where the commission of the crime is alleged to have been seen by the witnesses who are easily available, a prudent investigator would give, to the examination of such witnesses, the precedence over the other witnesses. Had PW-6 and PW- 12 aforesaid been the eye witnesses and they disclosed to the police about it, their statements would have also taken the precedence over the other witnesses. 17. In Balakrushna Swain Vs. State of Orissa 1971 (3) SCC 192, the Apex Court examined the matter with respect to the delay in recording statement of such a witness and held that much reliance cannot be placed on the evidence of a witness when for no justifiable reason he was not examined by the Investigating Officer for a number of days particularly when the witness is found to be telling falsehood on material aspects of the 12 case and tries to conform the evidence of other witnesses. 18. In the instant case, these two witnesses are said to be the witnesses not disclosing the relevant information to any one including the police at the earliest till 26.7.1998, which creates a serious doubt about the genuineness of the prosecution case. More so, when a large number of crowd had gathered there, the police could have also recorded the statement of some of the independent witnesses as to what they had seen on the spot, where as already stated above, other set of alleged eye witness including the injured did not implicate the respondent. 19. Thus, in view of the aforesaid, in our considered opinion, learned trial court rightly rejected the testimonies of PW-6 Sham Lal and PW-12 Darshan Lal, from its consideration. We also find that no implicit reliance can be placed upon them for converting the acquittal into conviction. Therefore, we are of the view that the prosecution has failed to prove the offence charged against the respondent in accordance with law beyond reasonable doubt. As such, the appeal is without merit. 13 The impugned judgment of acquittal requires no interference. Hence dismissed. 20. The respondent is discharged of his bail bonds entered by him at any time during the proceedings of this case. Send down the records. (R.B.Misra), J. November 25 2010 (Surinder Singh),J. (sl)