…1… IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.51 of 2008. Reserved on: 03.05.2011. Decided on: August 26, 2011 ____________________________________________________ Rajinder Kumar …Appellant. Versus State of Himachal Pradesh …Respondent. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge. ¹Whether approved for reporting? Yes For the appellant: Mr.Surinder Sharma, Advocate with Mr.Paresh Sharma and Mr.Shivank S.Panta, Advocates. For the respondent: Mr.R.K.Sharma, Sr.Additional Advocate General, with Mr. Rajinder Dogra, Additional Advocate General. . Justice R.B. Misra,J. The present Criminal Appeal has been preferred by the convict / accused / appellant from Jail against the judgment dated 22.11.2007, passed by learned Additional Sessions Judge, (Fast Track Court), Kangra at Dharamshala, in S.C.No.23-N/VII/07, whereby the accused was convicted and sentenced for life with fine of `50,000/- for commission of offence punishable under Section 302 IPC in reference to F.I.R. No.178 of 2007 dated 28.5.2007, registered at Police Station, Nurpur, and in default of payment of fine, the accused was to …2… undergo further imprisonment for one year. 2. The prosecution case, in brief, is that the victim / deceased / Aditya was playing cricket along with some children on 28.5.2007, when between 5:00 – 5:45 PM, accused / appellant, armed with ‘Drat’, went there and asked for cricket ball from one Anil by catching hold of his arm. However, Anil threw the ball towards victim / Aditya and when the victim was picking up the ball, accused / respondent went to that place and put ‘Drat’ on his neck and on asking by Anil that what the accused was doing, accused threw the victim 2 – 3 times on the ground, whereas, victim / Aditya in his endeavour to save himself, started running towards the fields, followed by the accused for a distance of 100 meters where the accused hit the victim with ‘Drat’ on his head. When the victim had fallen down, 4 – 5 hits were not only given not only on his body with ‘Drat’ but the victim was dragged towards ‘Nullah’ and was thrown in Sakari ‘Nullah’. Being afraid, children playing there, ran away and gave information to the father of the deceased, who was participating in ‘Bhandara’ in the Mandir known as ‘Ajay Pal Mandir’ in the same village, where large number of people were gathered. The parents of the victim / deceased, accompanying with many of the persons rushed to the spot and the mother of victim, placed Aditya in her lap when he was profusely bleeding and the victim was taken to the road and was shifted to Nurpur Hospital in taxi. On arrival to Nurpur …3… Hospital, the victim was declared dead. At some instance of the accused, ‘Drat’ was recovered. Post-mortem was conducted and after investigation, accused was charged for the aforesaid offence. 3. In order to prove its case, prosecution examined as many as 31 prosecution witnesses, whereas, the accused / respondent through his statement under Section 313 of Cr.P.C., did not produce any defence and shown his innocence, however, the accused stated in defence that he used to sit in the shop of his father and was not inimical to the accused and on the fateful day he was sent by his father to the fields, at that time he was carrying ‘Drat’ Ext.P-4 and thereafter he went to the mango garden and thereafter went to the fields adjoining to the orchard where children were playing cricket where the ball hit him. The children asked for the ball, when he refused, they quarreled with him and beaten him. Since accused was alone he gave hit of ‘Drat’ and injuries to victim / Aditya. Thereafter, getting afraid, he ran away from the spot and remained in jungle where he concealed ‘Drat’ and on 4.6.2007 one ‘Gaddi’ met him when he was feeling hungry and food was offered to him. Thereafter, he was handed over to the police. 4. PW-18, Dr.Raveen Soni, conducted post-mortem examination on the person of the victim / deceased on 9.5.2007 at 9.35 A.M. along with Dr.S.K.Mahajan and noted the …4… following injuries:- “EXTERNAL APPEARANCE. He was well built child wearing light green shirt soaked with blood alongwith white Banian with dark blue jeen soaked with blood. Rigormortis was present in lower limbs. Face was pallor with eyes closed with blood stains present on the face. INJURIES: 1. There was clean lacerated wound of 2x2cm horizontal over the medial part of clavicle with irregular margins. 2. Two adjoining elliptical wounds of 5 x 1.5 x 1 cm with irregular margins on right shoulder. 3. Clean lacerated wound on chin with irregular margin with skin asent at many places over the wound. 4. Clean small lacerated wound of 1 x 1 x ½ cm on lateral side of right shoulder. 5. Clean lacerated wound of 3 x 1 x ½ cm on the base of dorsal aspect of left hand thumb. 6. Chopped wound over the occipital region with c- shaped of 9 x 3 cm with bone expose with fracture of underlying of occipital bone of same size of external wound.” PW.18 has also opined as follows:- “The deceased died on account of head injury with fracture of occipital bone with intracranial hemorrhage and brain laceration leading to shock and death. The final opinion was given only after the report of Chemical Analyst. He further deposed that he had also taken out the bundle of clothes consisting of pant, vest and shirt, postmortem report in original, police papers duly signed, specimen sealed box containing large and small intestines, spleen and kidney, and sealed blood sample as asked by the police, which after taking was handed over by him to the police. No cross-examination was conducted of this witness. Meaning thereby observation that the death has been caused due to injury suffered by the deceased …5… cannot be found to have been disputed in any manner. Thus, as per statement of this PW.18, Dr.Raveen Soni, the postmortem was conducted and it was found that the death was on account of injury suffered by the deceased with ‘Drat’ which has been opined to be possible with ‘Drat’ (Ex.P4).” 4. PW-1 (Manoj Kumar) was apprised by his wife that victim / Aditya has been hit by ‘Drat’, PW-1 rushed to the spot accompanied by Shashi Pal and noticed that victim / Aditya was kept by his mother in her lap, having injuries on backside of the head as well as on the chin and other parts of his body. Since victim was bleeding profusely, as such, he was taken to the road side and was shifted to CHC Nurpur in a ‘VAN’from where PW-1, accompanied Rajinder Kumar, Subhash and Rajesh to the hospital where the victim was declared dead. PW-1 has stated that accused had attacked the victim due to some enmity. 5. PW-2, Sandeep alias Kaka, owner of Maruti ‘VAN’No.PB-02T-7793, was in Mandir where Bhandara was organized and at that time Nitin came and told that the accused had given a hit by ‘Drat’ to victim / Aditya and the victim was lying at Sakari ‘Nullah’. PW-2, when reached at the spot, noticed that Manoj and Shashi Pal were carrying the victim towards the road, PW-2 immediately went to his house and brought ‘VAN’and carried the victim to the hospital along with Subhash, Rajesh, Manoj and Rajinder where the victim was …6… declared dead. PW-3, Rajesh Kumar, also supported the prosecution case in the same manner as PW-2 by stating that when at 6.15 P.M. on 28.5.2007, Bhandara was going on in their village in Anjipal Mandir, one Nitin divulged the incident. PW-4, Rajinder, also narrated and corroborated the prosecution version in the same manner as narrated by PW-2 and PW-3. PW-4 has further stated that he, along with his elder brother Subhash and other people, when rushed to the spot, Shashi and Manoj were carrying the victim to the road, blood was oozing from the head of the victim when he was being carried in the ‘VAN’of Sandeep to the hospital at Nurpur, where he was declared dead. However, PW-4 has stated that dispute was going on with the father of the accused, whereas, father of the accused had won the case, thereafter, accused used to treat all the villagers as his enemies and the accused used to walk armed with ‘Drat’. PW-4 has further stated that 5 – 6 injuries were inflicted on victim / Aditya. 6. PW-5, Subhash Chand, on the fateful day, while in Bhandara, was informed by Nitin about the incident. On reaching the spot, along with Rajinder, Manoj and other people, PW-5 noticed that Manoj and Shashi were carrying the victim towards the road and the victim was taken to Nurpur hospital in the ‘VAN’of Sandeep, where he was declared brought as dead. PW-5 has further stated that the father of the accused was having litigation regarding land with the …7… villagers which was decided in his favour and he used to be inimical with the villagers the accused always used to come out armed with ‘Drat’. PW-5 has also stated that on 27.5.2007, victim had purchased a packet of ‘Kurkura’ from the accused which was subsequently returned as it was rotten and the money was returned reluctantly. Upon which, the accused had threatened the victim that he will see him. The victim revealed this incident to his mother in the evening in presence of PW-5. PW-5 has reiterated his statement of examination-in- chief indicating that the dispute was regarding ‘Shamlat deh’ land with whole the village. 7. PW-6, Ram Kumar, associated in the investigation, had stated that stones, grass and wooden pieces, smeared with blood, were taken from the spot. PW-7, Nitin Kumar, who was playing cricket with Aditya / deceased, Manoj, Anil, Sanjay, Gaurav Richu, Abhishek etc. in the field at village Sakari and at about 5.45 P.M. accused came armed with ‘Drat’ from the side of mango garden, caught hold Anil from arm and asked him to provide the ball, whereupon, Anil threw the ball towards victim. When victim was picking up the ball, accused went to that place and placed ‘Drat’ on the neck of victim and threw him 2 – 3 times on the ground. PW-7 (Nitin) intervened and asked accused not to do so, whereupon, accused threatened him also to be killed if he stayed there. PW-7 has further stated that victim / Aditya got released and …8… rushed towards the fields and the accused running after him, caught hold of him and gave 3 – 4 ‘Drat’ hits to victim on his head and neck. The victim was dragged from his leg and was carried towards the ‘Nullah’. PW-7 (Nitin) informed mother, father and uncle of the victim, namely, Sandla, Subhash and Rajinder. When PW-7, along with others, came to the spot, they saw Shashi and Manoj were carrying the deceased to the road side and thereafter the victim was taken in a ‘VAN’to the hospital. PW-7, in his cross-examination, has stated that no quarrel took place amongst the children playing cricket and has also stated that ‘Drat’ Ext.P-4 is not available everywhere. 8. PW-8, Abhishek, after taking meal in ‘Bhandara,’ on the fateful day, went to play cricket, along with victim / Aditya, Sanjay, Gaurav, Abhishek, Manoj, Anil etc. in the field where Nitin and Richu were also there. While playing, accused came there after ten minutes from the side of garden, armed with ‘Drat’ and caught hold of arm of Anil and asked for the ball. Anil threw the ball towards victim / Aditya, accused released Anil and rushed towards the victim, gave him fist blows and threw him on the ground two times. When Nitin asked accused what he was doing was wrong, upon which, accused abused him and told that he should keep silent otherwise he would be killed. Accused put ‘Drat’ on the neck of victim and when accused was threatening, victim ran away. Victim was followed by accused and was caught hold by accused at a …9… distance of about 100 meters, where 3 – 4 ‘Drat’ blows were given on the person of victim on the neck, chin etc and thereafter the accused dragged victim to the ‘Nullah’ and threw him there. 9. PW-9, (Gaurav), also reiterated the same version as has been narrated by PW-8. PW-9, has, however, stated in cross-examination that ‘Drat’ Ext.P-4 are generally available in all the houses. PW-10, Anil Sharma, who was also playing cricket on the fateful day, has stated that accused came armed with ‘Drat’ at about 5.30 P.M. and caught hold of him from the arm and asked him to hand over the ball and PW-10 threw the ball towards the victim, accused rushed towards the victim and threw him on the ground twice and being afraid PW-10 ran away to inform the parents of the victim and accordingly informed them and when again came after 15 – 20 minutes, victim was brought by Shashi and Manoj to the road side and thereafter was taken to Nurpur Hospital in a ‘VAN’. PW-10, however, had not witnessed the entire incident but has supported the prosecution case to the extent he has observed the incident. 10. PW-11, (Tilak Raj), the father of the victim, was participating in the ‘Bhandara’ on the fateful day and was informed at about 6.30 P.M. by one Nitin, who was also playing cricket with victim, that accused had administered ‘Drat’ hit to the victim and he was thrown in Sakari ‘Nullah’. PW-11, …10… accompanied with other people, came to the spot and observed that some people were carrying the victim to the road and thereafter the victim was taken to Nurpur Hospital. PW-11 reiterated the version of PW-5 regarding inimical attitude of accused forwards the villagers. 11. PW-12, (Kamla), an independent witness of the village, had observed that victim was crying that the accused had administered beatings to him and PW-12 observed victim / Aditya running followed by accused and the accused gave him ‘Drat’ blow to the victim and thereafter threw in the ‘Nullah’. PW-12 cried for help and thereafter proceeded towards her house where Beena along with 2 – 3 ladies met her to whom she revealed the incident. Thereafter, PW-12 came to know that victim / Aditya had died. 12. PW-13, (Mohinder Singh), posted as SHO, Police Station, Shahpur, on 4.6.2007, while on patrol duty, received a telephonic message from Rajan Chauhan that a boy named Rajinder, resident of Sakari, had told that he had committed murder of one boy of his village. Such information was given to SHO (Nathu Ram Chauhan), Police Station, Nurpur, telephonically and PW-13 took him to Shahpur and accused was handed over to him and when SHO Nurpur arrived at Police Station, Shahpur, he was handed over the accused. PW-14, Rajan Chauhan, has stated that on 4.6.2007, at about 8.30 P.M. , some boys brought the accused and accordingly …11… intimation was given to the police telephonically and the telephone was received by Mohinder Singh / SHO and on his direction, accused was kept under control and the accused confessed that he had committed murder of a boy in his village at Sakari and accused also asked PW-14 to hand over him to police. PW-14, in his cross examination, has reiterated his earlier version as made in examination-in-chief. 13. PW-15, (Rattan Chand), an agriculturist, has stated that on 4.6.2007, his son had gone to jungle with his goat where accused came across his son and came along with him to the house of PW-15 and revealed that he was hungry. PW-15 asked the accused that he would get food only provided he discloses his identity. However, the accused stated that he has murdered a boy of his village and thereafter he was provided food and PW-15 advised him to surrender to the police and accordingly the accused was taken to the house of Rajan at village Harnera accompanied by four other persons. 14. PW-16, (Smt.Veena), wife of Rajesh, when on 28.5.2005, was proceeding to Sakari, 7 – 8 boys were playing cricket in the field and after returning 15 – 20 minutes after answering the call of nature, PW-16 noticed that one Bhadehar came running and told that the accused had hit with ‘Drat’ to the victim who was lying in ‘Nullah’. When PW-16 went to the ‘Nullah’, she found victim lying face downward in the ‘Nullah’. At that time, accused, along with ‘Drat’, was seen in the field …12… and parents of the accused were found returning to their home after seeing the victim. The mother of victim came and placed the head of the victim in her lap, Manoj and Shashi also reached at the spot who took the victim towards the road and thereafter the victim was taken to the hospital. PW-16 reiterated her version as has been stated by her in her examination-in-chief. 15. PW-17, (Pradeep), while working as Home Guard, had taken into possession T-shirt and pant (Ext.P-6 and Ext.P-7) vide seizure memo Ext.PW-17/A and handed over the same to the police. PW-19, Pawan Chibb, has stated that ‘Drat’ was recovered from the jungle vide Ext.PW-19/A on which PW-19 and Teja appended their signatures along with the accused. PW-20, Bhim Sen, has stated that accused led the police party inside the jungle up to the distance of 200 meters and on search ‘Drat’ Ext.P-4 was recovered from thick bushes and measurement of ‘Drat’ Ext.P-4 was conducted, Khakha Ext.PW-20/A was also prepared on which PW-20 and Khushal appended their signatures. Seizure memo Ext.PW-20/B was prepared over which PW-20 and Khushal Singh had put their signatures and the parcel was sealed with seal ‘H’. PW-21, Muneshwar Kumar, Patwari, at the instance of police, visited the spot of occurrence and prepared Tatima as well as Jamabandi Ext.PW-21/A. 16. PW-22, (Rajinder Soga), took photographs of dead …13… body of the victim Ext.PW-22/A-1 to PW-22/A-5. PW-23, Constable Shiv Charan Singh, on 28.5.2007, at about 8.30 – 845 PM, received Rukka Ext.PW-1/A by S.H.O. for registration of the case and thereafter Rukka was handed over to MHC and accordingly F.I.R. was registered. PW-24, HC Harjeet Singh, stated that Rukka Ext.PW-1/A was brought by Constable Shiv Charan and on receipt of which F.I.R. Ext.PW-24/A was registered. PW-25, Constable Rajinder Singh, on receiving telephonic information from Sanjeev alias Pappu, reached to the spot and had recorded rapat Ext.PW-25/A. PW-26, HC Bir Singh, produced F.I.R. Register, Malkhana Register along with road certificate Register as was as rapat roznamcha Register. PW-27, Constable Vijay Kumar, on 4.6.2007, received five parcels from MHC Bir Singh through RC No.107/2007. PW-28, HHC Lal Singh, to whom MHC Bir Singh handed over parcels with seals ‘M’ and ‘H’, for being deposited at FSL, Junga. PW-29, HC Sher Singh, procured copy of Jamabandi Ext.PW-21/A and spot map Ext.PW-21/B and accordingly handed over the file to S.H.O., Nurpur. 17. PW-30, (Sub Inspector Bahadur Singh), had received case file for investigation from S.H.O. and on 6.6.2007, T-shirt and pant (Ext.P-6 and Ext.P-7) were taken into possession in presence of Pradeep and Ravinder. On 8.6.2007, accused made a disclosure statement in presence of Pawan Chibb and Teja, disclosing that he can get the ‘Drat’ recovered which he …14… had hidden near the road in the jungle. Accordingly, Ext. PW-19/A was recorded in presence of the witnesses. Thereafter, PW-30 proceeded in a Government vehicle and the accused led them towards the jungle from where he took out ‘Drat’ Ext.P-4 from the bushes which was measured and was found to be 9 ½ inches in length, its width was found to be 2 ½ inches and handle was found to be 13 inches. Khakha Ext. PW-20/A was prepared on which witnesses had appended their signatures and PW-30 had attested the same. ‘Drat’ was packed in a cloth piece vide Ext.PW-4/A. 18. PW-31, (Inspector Nathu Ram), has stated that he, along with police officials, proceeded to Civil Hospita, Nurpur and recorded the statement of Manoj Ext.PW-1/A which was sent through Constable Shiv Charan to Police Station, Nurpur for registration of F.I.R. Ext.PW-24/A. Inquest report Ext.PW-4/A was prepared in the presence of Rajinder and Rajiv Sharma. Post-mortem was got conducted. Spot was inspected. Blood stained soil, stones, including grass pieces, etc. Ext.P-1 and Ext.P-2 were taken into possession. Statement of witnesses were recorded. During investigation, it was found that the accused had committed murder of victim and it was found that accused used to roam armed with ‘Drat’ and it was also noticed that on 27.5.2007, victim / deceased had purchased ‘Kurkura’ which was returned and refund of money was refused and there was dispute amongst the father of the accused and …15… the villagers about the ‘Shamlat’ land. 19. Accused, in his statement under Section313 Cr.P.C., answered to Question No.8 and has stated that when he was in his fields he was hit by the ball which the boys were playing, the boys asked for the ball but accused did not hand it over to them, scuffle took place, where boys administered beatings to him, thereafter accused gave a hit of ‘Drat’ to one of them who suffered injuries on his head and one injury on the backside of the head. Thereafter, being afraid, he left the spot. In reply to Question No.12, he has stated that victim suffered injury in the field. In answer to Question No.34, the accused has stated that Rattan Chand asked him that why he was wandering in the jungle and since he was hungry, Rattan Chand told him that unless he discloses his identity, he would not provide him food, as such, accused disclosed him that after committing murder of victim, he ran away. In reply to Question No.35, accused has stated that Rattan Chand collected some people where accused disclosed the commission of offence before all of them. Thereafter, he was taken to the house of Rajan Chauhan (PW-14) and thereafter he was taken to the Police Station. In reply to Questions No.42, 43, 44, 45, 46, 47 and 48, the accused has stated that he disclosed that he had hidden the ‘Drat’ in the jungle and at his instance ‘Drat’ Ext.P-4 was recovered by which he had inflicted the injuries on the person of the victim. Seizure memo Ext.PW- …16… 20/B was prepared regarding recovery of ‘Drat’ which bears his signatures. In answer to Question No.56, the accused has also admitted his guilt. 20. PW-3, PW-4, PW-5, PW-7, PW-8, PW-9, PW-10, PW-12 and PW-16 have seen the occurrence and have consistently and coherently supported the prosecution case which indicate that while the victim was playing cricket, along with other children in the field, at that time accused came armed with ‘Drat’ from the side of Mango garden and had hit victim. PW- 11 (Tilak Raj) has not seen the occurrence, however, has supported the case of the prosecution. PW-18, through his statement, has given a true picture of the injuries. 21. PW-11, (Tilak Raj) / father of the victim, though had not seen the occurrence, however, had seen some people carrying the victim towards the road, from where he was taken to Nurpur Hospital. The accused was taken in custody by the police officials, Shahpur where he was brought by PW-31 Nathu Ram / S.H.O. PW-15 (Rattan Chand) has deposed that his son Gurdeep while grazing goats and animals in the jungle, the accused disclosed his identity to Gurdeep, for getting meal. 22. It has been argued on behalf of the convict / accused that Sanjeev alias Pappu was never examined on whose telephone PW-5 recorded Rapat. As per statement of PW-4 / (Rajinder) Shashi and Vinod were found carrying the victim towards the road, whereas, PW-11 / (Tilak Raj) stated …17… that some people were carrying the victim towards the road but in our considered view such minor contradictions do not go to the root of the case. In view of testimony of PW-4 and PW-5, there appears to be enmity between the father of accused and the villagers, however, it also appears