HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.537 of 2000 Judgment Reserved on:13.12.2010. Decided on: May 26, 2011. State of H.P. …Appellant. VERSUS Prajay Kumar & Ors. ….Respondents. Coram The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 For the Appellant: Mr.R.K.Sharma, Sr.Addl.A.G. with Mr.Rajinder Dogra, Addl. AG For the respondents: Mr.Anup Chitkara, Advocate. R.B.Misra, Judge: The present criminal appeal has come up for consideration, after granting of leave to appeal under Section 378(3) of the Code of Criminal Procedure, in reference to judgment dated 24.4.2000, passed by learned Additional Sessions Judge(II), Kangra at Dharamshala, H.P., in Sessions Case No.23-K/98 / Sessions Trial No.13/98, thereby acquitting the respondents / accused for offence under Section 302/34 of the Indian Penal Whether the reporters of the local papers maybe allowed to see the judgment? …2… Code, in reference to F.I.R.No.257/98 dated 10.7.1998, Police Station, Kangra. 2. The prosecution case, in brief, is that on receiving a telephonic message at about 4.20 P.M. on 10.7.1998 from Medical Officer, CHC Nagrota Bagwan at Police Station / Post, Nagrota Bagwan that an injury case was admitted to the hospital, ASI Kishore Chand led a police party and reached to the hospital and found that one Anurag was lying dead in the hospital. One Kewal Krishan, son of Diwan Chand, stated to the police under Section 164 Cr.P.C. that he was a student of 10th Class at Senior Secondary School, Samaloti and knew Anurag / deceased very well as he too was a student of the same school. On that day, after the school was closed, Kewal Krishan had gone from the school straight to his house but came back to Bazar near the school to purchase some medicines; when reached near the school, he found accused Tilak Raj, Anil Kumar, Vijay Kumar and Prajay Kumar giving beatings to Anurag / victim / deceased. Accused Tilak Raj gave a blow to the left side of the chest of Anurag / deceased with a knife like ‘Khukhri’, as a result, he fell on the ground and bleeding started from his chest profusely. All the four accused ran away from the spot, but out of fear Kewal Krishan concealed himself nearby. The narration of occurrence was made to Sanjay Kumar, Suresh, Vinod Kumar, Nirdosh and Jagroop, while they were walking near the gate of the school but when they came near the victim, he could not speak, thereafter an auto rikshaw was …3… engaged and the victim / injured was brought to hospital at Nagrota Bagwan where the doctors declared him dead. Kewal Krishan further divulged to the police that all the four accused had already threatened Anurag / victim in the morning. In reference to such statement of Kewal Krishan made under Section 154 Cr.P.C., F.I.R. No.257 of 1998 was registered against the accused persons and after investigation, accused were charged for the aforesaid offences. 3. In order to prove its case, prosecution examined PW-1 Dr.Rajesh Guleri, PW-2 Gopal Dass, PW-3 Krishan Kumar, PW-4 Constable Hoshiar Singh, PW-5 Ramesh Kumar (Patwari), PW-6 Dr.D.P.Swami, PW-7 Kewal Krishan, PW-8 Chuni Lal, PW-9 Satish Kumar, PW-10 Kapil Kumar, PW-11 Shri Chand, PW-12 Des Raj, PW-13 Sita Ram, PW-14 HC Sita Devi, PW-15 Constable Salig Ram, PW-16 Constable Kalyan Singh, PW-17 SI Taranjeet Singh, PW-18 ASI Kishore Chand, PW-19 Inspector Daulat Ram and PW-20 SI Prakash Chand , whereas, accused / respondents through their statements under Section 313 Cr.P.C. denied the prosecution case. 4. On analysis of prosecution witnesses and materials on record, we notice that Anurag / deceased was a student of class plus 2 of Government Senior Secondary School, Samloti, District Kangra, whereas, PW-7 Kewal Krishan was student of Class 10 and PW-10 Kapil Kumar was student of plus 1. As per prosecution, all the accused were also the students of the same school and there was a distance of 50 – 60 meters from the gate of the school as …4… per testimony of PW-10 Kapil Kumar, where the occurrence took place. 5. Accused Tilak Raj inflicted injuries with ‘Khukhri’ on the chest of Anurag / deceased in view of the testimony of PW-7 Kewal Krishan and PW-10 Kapil Kumar, when victim / deceased had fallen down, accused Tilak Raj again hit him with ‘Khukhri’ and also gave beatings, whereas, accused Vijay had given fist blows on the person of Anurag / deceased as stated by PW-7 Kewal Krishan and PW-10 Kapil Kumar. Accused Prajay carrying ‘Chhura’ had hit Anurag / deceased with it on the left side of his chest. When Anurag / victim had fallen down, accused Prajay again hit him with ‘Chhura’ and gave beatings as per testimony of PW-7 Kewal Krishan. In view of the testimony of PW-7 Kewal Krishan, accused Anil was carrying ‘Chimta’ (an iron strip kind weapon) with him with which blows were given on the back of Anurag / deceased. Such statement was also made by PW-10 Kaipl Kumar. 6. It appears, in the earliest report u/ 154 Cr.P.C, the name of other eye witnesses including PW-10, Kapil Dev was not mentioned and only one stab wound was mentioned, whereas, later on improvements were made in the case to cover up four injuries detected by the doctor. A large number of students and teachers might be present around the scene of crime when the school was over and they could have easily been investigated. Similarly no evidence was led to prove that at what time the periods for class tenth, +1 and +2 were over. On the other hand …5… the investigating officer has tried to introduce those persons as eye witnesses whose presence at the spot is not at all proved and many of the witnesses were not examined by the prosecution. The discoveries pursuant to the statements under section 27 are not at all connected with the injuries and weapons as seen by the independent witnesses in the police station before the discovery pursuant to Section 27 of Indian Evidence Act was made. There is no evidence that the shirt Ext P-9 belonged to accused Tilak Raj. 7. In the statement under Section 154 Cr.P.C. Ext. PW-7/A, it was stated by PW-7, Kewal Krishan that Tilak had a Khukri by which he gave a blow on the left side of chest of Anurag. As per Ext. PW- 7/A, the other three accused persons were neither armed nor did they inflict any injury. 8. PW-7, Kewal Krishan, has stated as below:- “On 10-07-1998 at about 3.30 P.M at village Samloti, accused Tilak Raj, Vijay, Prajay and Anil were beating said Anurag. Tilak Raj had a khukri, Prajay had a Chhura, Anil had a chimta of cycle, whereas, Vijay was empty handed. Tilak Raj hit with khukri on the chest of Anurag, Prajay had hit the chhura again on the left side of the chest of Anurag deceased. Due to stab wound Anurag fell down while on his back Anil inflicted blows with Chimta. Vijay was giving him fist blows. When Anurag got up and tried to run away, again on his back he was hit by accused Tilak Raj and Ajay with khukri and Chhura. Anurag was crying ‘Mar Diya Mar Diya’ Anurag then went to the near my shop of goldsmith. On bench lying out side the shop he laid down. Kapil and Lekh Raj were trying to save Anurag. After laid down on the bench shopkeeper also came there. We four persons took him to …6… the hospital at Nagrota in three wheeler. I had also accompanied them in the three wheeler. The doctor declared him dead. The doctor informed the police on telephone and police came there. Police asked us about the occurrence. The police recorded my statement Ext. PW-7/A”. 9. PW-7, Kewal Krishan, has also stated as below:- “I do not remember if I had told the police that Prajay had a Chhura and Anil had a Chimta with them. However, it is not so recorded in Ext. Ext. PW-7/A. I did not disclose to the police that Prajay had inflicted a blow with Chhura on the left side of the chest of Anurag because I was terrified at that time. I had disclosed that Anurag was hit with Chimta by Anil but not so recorded in ext. PW-7/A. I had not disclosed in the hospital that Vijay had given fist blows to Anurag but I did disclose about the entire occurrence to the police at police station Kangra. I had not disclosed to the police in the hospital that accused Anil and Prajay Kumar had inflicted the injuries with their weapons on the back of Anurag while he was trying to run away.” 10. Whereas, PW-10, Kapil Kumar / (Student of Govt. School, Samloti) stated as below:- “On 10-7-1998 after the school has closed I along with Anurag and Nek Ram were coming to the house. Anurag and Nek Raj were also the students and were going to their houses after the closure of the school. When we were at a distance of about 50/60 metres from the gate of the school, Prajay accused called Anurag towards him and then Anurag went towards him and all the accused persons started fighting with him. Prajay had a knife, Tilak had a Khonkhari. Tilak Raj hit the deceased on left side of the chest of Anurag. Prajay also hit the knife there. Anil had an iron strip kind weapon with him with which blow was given on the back of Anurag. Vijay had given fist blows on the person of Anurag. Anurag started crying. After some time whole of the accused had …7… run away. Then they again came towards injured and gave beatings to Anurag again, with knife and chimta. Thereafter Anurag went to the shop and laid down on the bench there. All the four accused persons ran away. I, Nek Raj and one or two more persons took him to the hospital in three wheeler. There the doctor declared him dead. Since my clothes were badly smeared with blood I came back to my house and changed the clothes. On 16.7.1998 I went to police station Kangra, where my statement was recorded.” 11. Above statements reveal that there should have been two stab wounds on the left side of the chest, whereas, only single stab injury was noticed in post mortem report, as such, the observance by PW-10, Kapil Dev of the occurrence becomes doubtful. 12. PW-7, Kewal Krishan, stated that “I had gone to the police station Kangra in connection with this case once only and that was on 16-7-1998. It is incorrect that I was suggested by the police to change the manner of occurrence so that the injuries which were shown by the doctor could be fitted in my changed version. It is incorrect that the new story was prepared by the police was attributed to me.” 13. PW-6, Dr.D.P.Swami, stated, “There was alleged history of that this person was stabbed by Tilak, Vijay Kumar, Prajay and Anil Kumar / (Stabbing done by Tilak) on 10.07.1998 approximately 3.30 P.M outside the Samloti school (10+2) gate on the road and died on the spot.” PW-6 further stated in cross examination, “Inquest report was received by me at 10-40 A.M on 11-7-1998. In column 12 …8… of inquest report Ext. PW-3/A, only one weapon is stated to have been used for causing the injuries. Initially I was told that four persons namely Tilak Raj, Vijay, Prajay and Anil had stabbed but later on, on further inquiry by me it was disclosed to me that only Tilak Raj had done the stabbing. The inquest report is based on the report/ statement of Kewal Krishan.” 14. PW-6, Dr. D.P.Swami, noticed as below:- “1.Stab wound 1½ x ½ x 2 ½, on the left side of chest above downwards in levelling, just on the mid front, left 4 rib area reddish cutting the fourth rib with sharp margins of whole track up to piercing of lower 1/3rd of interventricular area upto the cavity of lt/ ventricle, terminating as ½ inch x ¼ inch x 1 ½ inch wound. Clotted blood 3 inches x 3 inches area around the heart and chest cavity..” 2. Stab wound on left side of upper left mid back above downwards in veveiling, reddish, sharp edges 1 inch x ½ inch x 1 inch obliquely placed... “ 3. Stab wound on the left mid back (see diagram no. 3) injury oblique sharp margins above downwards bevelling reddish ½ inch x ¼ inch x ½ inch size. 4. Incised wound 2 inch x ¼ inch x ¼ inch on rt. mid arm tailing out wards reddish sharp edges. PW-6 also indicated that “the time lapse between injury and death 1 minute to 5 minutes and “It is correct that injuries no. 1 to 3 could be caused by a sharp edged knife.” 15. PW-18, ASI, Kishore Chand, stated in his Examination-in- chief, as below:- “On 7.10.1998, at about 4.20 P.M, I received a telephonic message from MO, Nagrota Bagwan, whereby I was …9… intimated that a boy in an injured condition with a dagger was admitted in the hospital at Nagrota Bagwan. On this information, I lodged report copy of which is Ext. PW-16/A.” In inquest report Ext. PW-3/A, only one weapon Knife shaped ‘Khukri’ is mentioned. PW-18, ASI, Kishore Chand, further stated in cross-examination as follows:- “It is correct that in column no. 12 of the inquest report there is reference of only one weapon and the inquest report was prepared on the statement of Kewal Krishan.” 16. PW-6, Dr. D.P.Swami, stated that “Knife Ext. P-1 only injury no. 4 is possible. Injuries No. 1 to 3 are not possible with this knife. I have examined the knife Ext. P-2. With this knife also only injury no. 4 and no other injury is possible.” PW-6, Dr. D.P.Swami, has further stated “If Ext. P-1 is stabbed and then twisted inside the body even then none of the aforesaid injures i.e. 1 to 4 are possible with it. Similarly if Ext. P-2 is stabbed twisted in the body and taken out none of the aforesaid injuries are possible. If force is applied while stabbing Ext. P-1 and ext. P-2, only injury no. 4 is possible. Injury no. 1 is not possible even if Ext. P-1 is stabbed with mild force. Although the dimensions of injury no. 1 tally with the dimensions but this injury cannot be caused with it as the weapon is having only one edged sharp and other blunt, whereas, the injury no. 1 being …10… spindle in shape is caused by a weapon which has both the edges sharp. If ext. P-1 is stabbed and then taken out and again is stabbed with its reverse direction then injury no. 1 to 3 are possible, but that is very remote possibility. In my opinion the weapon which caused injuries no. 1 to 3 is not shown to me today. I am very definite about it. These injuries are not definitely possible with ext. P-1 and P-2. I have an experience of 21 years of medical examination and during this period I have seen dealing medico legal cases very frequently.” PW-6, Dr. D.P.Swami, also stated “No injury out of 1 to 4 is possible with this pronge. It is Ext. P-3.” 17. Whereas PW-10, Kapil Kumar, stated:- “The weapons are Ext. P-1 to P-3 which are used are the same.” PW-10, Kapil Kumar, stated in cross-examination:- “Although there is no specific mark of identification but these weapons in the hands of accused look like these.” 18. In view of above averments, it appears that the doctor PW-6, Dr. D.P.Swami, was not declared hostile, however, the other witnesses, namely, PW-7, Kewal Krishan and PW-10, Kapil Kumar, are interested witnesses and their presence at the spot become doubtful. The verdict of Javed Masood & Another versus State of Rajasthan, (2010) 2 SCC (Cri) 1176, Para 20, 21 may support the …11… defence case. For convenience, relevant paragraphs are extracted below:- “20. In the present case the prosecution never declared PWs 6, 18, 29 and 30 "hostile". Their evidence did not support the prosecution. Instead, it supported the defence. There is nothing in law that precludes the defence to rely on their evidence. 21. This court in Mukhtiar Ahmed Ansari versus State (NCT of Delhi), (2005) 5 SCC 258, observed: "30. A similar question came up for consideration before this Court in Raja Ram versus State of Rajasthan, (2005) 5 SCC 272. In that case, the evidence of the Doctor who was examined as a prosecution witness showed that the deceased was being told by one K that she should implicate the accused or else she might have to face prosecution. The Doctor was not declared "hostile". The High Court, however, convicted the accused. This Court held that it was open to the defence to rely on the evidence of the Doctor and it was binding on the prosecution. 31. In the present case, evidence of PW1 Ved Prakash Goel destroyed the genesis of the prosecution that he had given his Maruti car to police in which police had gone to Bahai Temple and apprehended the accused. When Goel did not support that case, accused can rely on that evidence." The proposition of law stated in the said judgment is equally applicable to the facts in hand.” 19. The testimony of PW-9 makes the presence of PW-7, Kewal Krishan and PW-10, Kapil Dev doubtful at the spot. PW-9, Satish Kumar / gold smith, in front of whose shop, there was a bench and Anurag had gone there and sat on it, stated in his statement made in examination-in-chief as follows:- “When I reached my shop the deceased was already sitting on a bench inside the shop. He was bleeding profusely. …12… Thereafter 4-5 school boys came there and they took him a three wheeler to Nagrota Bagwan.” Initially when PW-9, Satish Kumar, saw victim / Anurag sitting on the bench, then at that time he was alone and after that 4-5 boys had come there and had taken him to the hospital, but neither PW-7, Kewal Krishan nor PW-10, Kapil Kumar were seen by PW-9, Satish Kumar, present with the deceased at the time when he was sitting on the bench. 20. No evidence was led to prove that at what time the periods for class tenth, +1 and +2 were over. In his statement u/s 154 CrPC, PW-7, Kewal Krishan had specifically stated that after the school was over, he had gone to his home and when he came back to purchase the medicine, he saw the incident. He was shown as chance witness. Whereas, in Court he did not say so in his examination in chief, and he was cross examined on this aspect. It appears improbable that PW-7 had seen the occurrence once he had gone back to his house after the school had closed, then it was impossible for him to come back within 10 minutes, from his house, which was at a distance of six kilometers on one side, thereby completing to and fro journey by covering a distance of twelve kilometers. PW-7, Kewal Krishan, has stated “On that day I had gone to my house after the school was over. The distance between Skot and place of occurrence is about 6 kms. The distance …13… between Skot and Kangra town via shortcut is not about two kilometers, but about 9-10 kilometers.” As such, the presence of PW-7, Kewal Krishan and PW- 10 Kapil Dev at the scene of crime is not proved. 21. Regarding the number of persons who took the injured to the hospital in a three wheeler / Auto Rickshaw, the statement of PW-7, Kewal Krishan, may be seen:- “Kapil and Lekh Raj were trying to save Anurag. After laid down on the bench shop keeper also came there. We four persons took him to the hospital at Nagrota in three wheeler. I had also accompanied them in three wheeler” Whereas, PW-10, Kapil Kumar, stated as below:- “I, Nek Raj and one or two more persons took him to the hospital in three wheeler” A combined reading of all the evidence indicates that the following persons had travelled in a three wheeler while proceeding to the hospital: 1. Driver of the Auto Rickshaw (Three wheeler) 2. Injured Anurag 3. Lekh Raj (Reference of statement of PW-7) 4. Shop keeper (Reference of PW-7) 5. PW-7, Kewal Krishan (Reference of PW-7 & PW-10, Kapil Kumar) 6. PW-10, Kapil Dev (Reference of PW-7 & PW-10, Kapil Kumar) 7. Nek Raj (Reference of PW-10, Kapil Kumar) 8. Sanjay Kumar (Reference: PW-7/A, 154 CrPC) 9. Sudesh Kumar (Reference: PW-7/A, 154 CrPC) 10. Vinod Kumar (Reference: PW-7/A, 154 CrPC) 11. Nirdosh Kumar (Reference: PW-7/A, 154 CrPC) …14… 12. Jagroop (Reference: PW-7/A, 154 CrPC) It appears improbable that such large number of persons had travelled in three wheeler with the victim and the conduct of the eye-witnesses is unnatural as such their testimonies can not be believed in view of the decision of Hon’ble Supreme Court in State of Tamil Nadu, represented by Secretary to Government versus Subair alias Mohamed Subair & Others, AIR 2009 SC 1189. The relevant paragraph is extracted as below:- “4. It is seen that PWs 1 and 2 stated that they had left the injured in lurch and had disappeared from the scene making deceased to cringe an auto driver to take him to hospital. Would any close friend of a person involved in the movement allow such a thing to happen to him is the question looming large and there is no explanation for it. Further, it is curious to note that both PWs 1 and 2 have stated that they did not inform about the occurrence to anybody till they were asked by the police in the mid night of the date of occurrence. The conduct of PWs 1 and 2 is un-natural and unbelievable and their presence at the time of occurrence is doubtful and the testimonies of PWs 1 and 2 cannot be accepted.” 22. The presence of PW-10, Kapil Dev at the spot is highly doubtful because his name did not find mention in the earliest version. In 154 CrPC, Ext PW-7/A, Kewal Krishan did not state about the presence of PW-10, Kapil Dev. He even did not say that Kapil Dev also went to the hospital in the Auto Rickshaw. In case PW-10, Kapil Dev was present at the spot, then while making efforts to save Anurag, he must have sustained some injuries at the hands of four accused, who were allegedly armed with ‘khukari’, knife and ‘chimta’. …15… 23. PW-10, Kapil Kumar, in cross-examination, stated:- “I remained at a distance of 10/15 metres away from the accused persons when they stabbing Anurag. I did not dare to go there as they were armed with weapons. So I did not try to save Anurag from the clutches of the accused. I had only asked orally not to give beating to Anurag. The police had not asked from me about it so I did not tell them. I do not remember that I have disclosed that I and Nek Ram had tried to save Anurag to rescue to him from the clutches of the accused. But it is so recorded in Ext. DB.” Whereas, PW-7, Kewal Krishan, has stated that “It is correct that Sanjay Kumar, Suresh Kumar, Vinod Kumar, Nidosh and Jagrup are also the students of Samloti school. It is correct that I had told the police that with their help Anurag was brought to the hospital. After the occurrence was over other persons except Kapil and Nek Ram had arrived there. Both these persons did not sustain any injury while saving Anurag.” 24. If PW-10, was present at the hospital on 10th itself, then there was no reasons as to why his statement under section 161 CrPC could not have been recorded on