IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.A No.37 of 2006 Decided on : August 27, 2009 Chanan Singh …Appellant. Versus State of H.P. …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 Yes. For the Appellant : Mr. B.C. Negi, Advocate. For the Respondent : Mr. Ramesh Thakur, Assistant Advocate General. Surjit Singh, J (Oral) Appellant Chanan Singh has appealed against the judgment, dated 18th January, 2006, whereby the Sessions Court has held him guilty of murder of his brother Resham Singh and convicted him, under Section 302 of the Indian Penal Code, and sentenced him to undergo imprisonment for life. 2. We may notice the prosecution case first. Deceased Resham Singh was employed as a Chowkidar with I & PH Department of Himachal Pradesh and was posted at a place called Nariwala. He used to leave his house in village Nawada, every evening, around 4 p.m. and after Whether reporters of the local papers may be allowed to see the judgment? …2… performing his duty as Watchman, for the night, would return home early in the morning, around 7 a.m. As usual, he left his house on 3rd August, 2003, at 4 p.m. Next morning, around 6.45, when Salinder Kaur (PW-1), a daughter of the deceased, went out of her courtyard to throw the swept garbage, she heard cries of her father. She looked towards the side from where the cries were erupting and proceeded in that direction. She saw her father lying on the path leading to their house. Appellant Chanan Singh was standing nearby, with a Phali (an instrument made of iron meant for digging holes in the earth). On seeing PW-1 Salinder Kaur, appellant went away, saying that he had finished the father of Salinder Kaur. Soon mother of PW-1 Salinder Kaur came there. PW-1 Salinder Kaur informed her mother that she had seen the appellant standing near the dead body with a Phali. Mother of PW-1, Sangat Kaur, then left towards village Nawada and soon thereafter Rajinder Singh, a brother of the deceased and the appellant, came there. Harish Kumar (PW-2), Prahdan of the Panchayat, was informed by one Param Chand that Resham Singh’s dead body was lying at a slopy place, leading to his house. PW-2 Harish Kumar then gave a ring to the police. Police entered the information in the Daily Diary, vide report copy Ex. PW-13/A. On getting that information SHO Khajana Ram (PW-13), accompanied by SI Shyam Lal, ASI Mohar Singh (PW-8), HC Pradeep …3… Kumar No.350, HHC Pratap Singh No.269, HHC Bhagmal No.429 and HHC Prem Lal No.152, left for the spot, by official vehicle No.HIN 730. He reached the spot at 8.15 a.m. PW-1 Salinder Kaur made statement Ex. PW-1/A to him, on the spot. He concluded the recording of the said statement at 10.15 a.m. and sent it to the Police Station, for formal registration of the case. Case was registered vide FIR Ex. PW-8/B. Thereafter inquest was conducted. Report Ex. PW-13/B was prepared and form No.25.35(1)(B) was filled in. Request for postmortem examination, addressed to the Medical Officer, Civil Hospital Paonta Sahib, was drawn and the dead body was sent to the Hospital alongwith the said inquest report and form No.25.35(1)(B). HC Pradeep Kumar and HHC Pratap Singh were deputed to take the dead body to the Hospital. Dead body was carried in a tractor. PW-13 Khajana Ram then took into possession a bicycle of the deceased and certain other things, including two blood stained pieces of stone, lying on the spot. A piece of the skull bone and the brain matter of the deceased, lying on the spot, were also taken into possession and sealed, separately. 3. Postmortem examination was conducted at 3.30 p.m. by PW-7 Dr. Rakesh Dhiman. Doctor observed as follows: “The face of the body was covered with dried blood. The face and upper portion were …4… depressed on the left side in the temporo parietal area. There was a curvilinear cut injury in the left temporo parietal area. The length and width of this injury were 8 cm and 8 ml respectively. Close to the injury in the temporo parietal area there was another injury from which bone was exposed. The edge of the injury was sharp. Its size was 2 cm x 8 ml. There was a contused wound on the forehead. It was 4 mm in diameter, the injury being of a round shape. There was a cut injury on the right parietal area. The size of the injury was 9 cm x 2.5 cm. The brain matter had been exposed through this injury. Its shape was curvilinear. Besides, there was a bruise with contused lacerated wound over the left eye brow. The size of the bruise was 4 cm x 8 ml and that of the contused lacerated wound 2 cm x 0.5 cm. There was a cut injury on the right side of occipital region. Its size was 7 cm x 3 cm. It was moon-shaped. Besides, there was a bruise of 4 cm x 8 ml size above the left ear. There was a contused lacerated wound over the right forearm-ulnar aspect. The size of this injury was 2 cm x 0.5 cm over middle third. The skull of the deceased was deformed, compressed and depressed on the left tempor- frontal and right occipital and vertex area. There were multiple communuted fractures of the left frontal-parietal-temporal and right occipital and parietal bones. The membrains of the brain were irregularly lacerated. The …5… cerebral hemisphere was deformed and lacerated with blood in the cranial cavity. The right cerebellar hemisphere was also lacerated. There was blood in trachea; both the lungs were conjested; there was blood in oropharynx. The liver, spleen and kidney were conjested.” The doctor opined that cause of death was shock, resulting from direct multiple injures on the head/brain matter and vital centres leading to cardiac respiratory arrest/death. All the injuries noticed by him were opined to be ante-mortem. Time lag between the infliction of the injuries and the death was opined to be less than five minutes and the probable time lag between the death and the postmortem “within 24 hours”. 4. At 10 a.m., appellant went to the Police Station and surrendered himself to PW-8 ASI Mohar Singh. While surrendering he informed PW-8 Mohar Singh that he had killed his brother Resham Singh, with a Bari. PW-9 ASI Mohar Singh kept him in his custody till the arrival of SHO, PW-13 Khajana Ram. The latter returned to the Police Station, from the spot, at 2.15 p.m. and soon after his arrival, custody of the appellant was handed over to him by PW-8 ASI Mohar Singh. PW-13 Khajana Ram then arrested the appellant and interrogated him. Appellant made disclosure statement, record of which is Ex. PW-5/A, leading to the recovery of weapon of offence Ex. P-1. The weapon was taken into possession vide Memo Ex. PW-1/B. It was …6… sent to the Chemical Examination, who noticed traces of human blood and human hair on it. 5. Prosecution examined PW-1 Salinder Kaur, daughter of the deceased, as eye-witness. It also examined Manjit Singh (PW-5) to prove the disclosure statement made by the appellant and the discovery of weapon of offence, pursuant to that statement, and the doctor, who conducted the postmortem examination, namely PW-7 Dr. Rakesh Dhiman. ASI Mohar Singh was examined as PW-8. Khajana Ram, Investigating Officer, was examined as PW-13. Prosecution did not examine the mother of PW-1 Salinder Kaur nor did it examine one Pradeep Singh, to whom the appellant had allegedly made extra-judicial confession, before surrendering to the police, on the advice of uncle of said Pradeep Singh (the said uncle of Pradeep Singh is a retired Public Prosecutor). It, however, examined the said uncle of said Pradeep Singh, who is PW-4 Swaran Singh. 6. Appellant stated that he had been falsely named as culprit by PW-1 Salinder Kaur, because once he had seen her in an objectionable position with a boy, named Sunil Singh, and had seized from her a letter written to said boy Sunil Singh, a photograph of said Sunil Singh and two note- books, in which said Sunil Singh had written some romantic verses, meant for her. Learned trial Court relied upon the testimony of PW-1 Salinder Kaur, the daughter of the …7… deceased, as an eye-witness, and also the testimony of PW- 13 Khajana Ram, with regard to the fact of discovery of weapon of offence, at the instance of the appellant, disbelieved the defence version and held him guilty. . 7. We have heard the learned counsel for the appellant as also the learned Assistant Advocate General and perused the record. 8. Testimony of an eye-witness can be used and relied upon to convict a person, without corroboration. Legal position is well settled on the point. However, there may be cases and situations where corroboration may be required for acting upon the testimony of an eye-witness. This is one of such cases. 9. PW-1 Salinder Kaur claims to have seen the appellant, with weapon of offence in his hand, near the dead body at 6.45 a.m. She testified that when she stepped out of her house to throw swept garbage and reached a culvert, in front of her house, she heard her father’s cries, erupting from Ghati side and when she reached the spot, she saw her father lying breathless and the appellant standing nearby, with Phali Ex. P-1, in his hand. She says that when she was still on the spot her mother arrived and she narrated, what she had seen, to her and that her mother then left towards the village crying and soon her Chacha Rajinder Singh arrived. Prosecution did …8… not examine either the mother (named Sangat Kaur) or the Chacha Rajinder Singh of PW-1 Salinder Kaur. 10. Reasons why we feel that testimony of Salinder Kaur (PW-1) cannot be relied upon, without corroboration, are numerous. First of all, she delayed the making of report to the police by about two hours, even after the arrival of the police on the spot, though as per her own testimony as PW-1 Salinder Kaur as also the testimony of PW-13 Khajana Ram, she was on the spot when the Police Officer, namely PW-13 Khajana Ram, reached there at 8.15 a.m. Not only this PW-13 Khajana Ram says that she remained on the spot throughout till the recording of her statement. As already noticed, time recorded below her statement, Ex. PW-1/A, by PW-13 Khajana Ram is 10.15 a.m. No explanation has been offered by the prosecution why the recording of the statement of PW-1 Salinder Kaur was delayed by about two hours. 11. PW-1 Salinder Kaur, being the daughter of the deceased, was supposed to have told the Police Officer, namely PW-13 Khajana Ram, immediately on his arrival at the scene, that her father had been done to death by the appellant and that she had seen him standing by the side of the dead body, with Phali Ex. P-1. Her keeping mum for two hours is unnatural and makes her testimony shaky. 12. It is not only the aforesaid reason, because of which we are looking for corroboration of the statement of …9… PW-1 Salinder Kaur, but also certain other facts and circumstnaces, which clearly suggest that the Investigating Officer of the case has ante-timed certain papers, in which version given by PW-1 Salinder Kaur also figures. 13. According to PW-13 Khajana Ram, after dispatch of statement Ex. PW-1/A to the Police Station, for registering the case, he conducted inquest and prepared report Ex. PW-13/B and also filled in Form No.25.35(1)(B). In both these documents not only the version given by PW-1 Salinder Kaur in her statement, under Section 154 of the Code of Criminal Procedure, which is Ex. PW-1/A, finds mention. Besides preparing these two documents, PW-13 Khajana Ram also wrote a request for postmortem examination, addressed to the Medical Officer, which we find among the un-exhibited documents of the prosecution. In the said request also report lodged by PW-1 Salinder Kaur, through statement Ex. PW-1/A, is recorded verbatim. PW-13 Khajana Ram testified that it took him half an hour to complete the recording of statement Ex. PW-1/A. Now, this statement is reproduced verbatim in the inquest report and Form No.25.35(1)(B), as also the un-exhibited written request. That means atleast 1½ hour was supposed to have been spent on reproducing statement Ex. PW-1/A, in these three documents. In addition to that PW-13 Khajana Ram, drew site plan in the two un-exhibited reports and also filled in various other columns of the format of those …10… reports. Also, we notice that he wrote ziminies at 10.15 a.m. The entire process is supposed to have consumed more than two hours. But, PW-13 Khajana Ram says that at 10.30 a.m., he had dispatched the dead body to the Hospital and alongwith the dead body he sent the aforesaid two reports Ex. PW-13/B and PW-13/C, besides the un- exhibited written request. This was not possible. 14. Statement of PW-13 Khajana Ram that the dead body was sent to the Hospital at 10.30 a.m., is further falsified by some documents relied upon by the prosecution itself. According to PW-13 Khajana Ram, he deputed HC Pradeep Kumar No.350 and HHC Pratap Singh No.269, with the dead body, to the Hospital. The fact finds mention in Ex. PW-13/C also. However, there is an entry in the Rojnamcha, i.e. Entry No.24, dated 4th August, 2003, which shows that HC Pradeep Kumar No.350 returned to the Police Station with the SHO. According to Entry No.24, aforesaid, Khajana Ram reached the Police Station at 2.12 p.m., after completing the proceedings on the spot. This entry was though not exhibited, but it being part of the challan submitted by the police can be looked into for the limited purpose of verifying the veracity of the statement of PW-13 Khajana Ram. Now, if HC Pradeep Kumar No.350 had been deputed with the dead body to the Hospital, at 10.30 a.m., from the spot, as testified by PW-13 Khajana Ram, he was supposed to have remained …11… with the dead body till the postmortem was completed and the postmortem report was handed over to him. The fact that HC Pradeep Kumar No.350 returned to the Police Station at 2.15 p.m. with PW-13 Khajana Ram, renders the testimony of PW-13 Khajana Ram, to the effect that the dead body was sent to the Hospital at 10.30 a.m., from the spot, unbelievable. 15. Postmortem report Ex. PW-7/A shows that postmortem was conducted at 3.30 p.m. This fact also suggests that the dead body might not have been dispatched to the Hospital at 10.30 a.m. Admittedly, the distance between the place of occurrence and Paonta Sahib, where the Hospital is located, is six kilometers. Dead body was taken from the spot to the Hospital by a tractor, as testified by PW-13 Khajana Ram. It might not have taken more than half an hour to carry the dead body, from the spot, to the Hospital. The fact that the postmortem was conducted on 3.30 p.m., suggests that the dead body reached the Hospital not around the time, as suggested by PW-13 Khajana Ram, but much later. According to the inquest report, as also the request made to the doctor for postmortem, which is un-exhibited, HC Pradeep Kumar No.350 took the dead body to the Hospital, but he, as demonstrated hereinabove, had been with the SHO, PW-13 Khajana Ram, till he returned to the Police Station at 2.15 …12… p.m. This leads to an inference that the dead body was sent to the Hospital after 2.15 p.m. 16. Question arises as to what is the effect of the inconsistencies, pointed out hereinabove, on the veracity of prosecution case. PW-1 Salinder Kaur claims to be the eye- witness. She did not lodge the report promptly. She took about two hours’ time to report to the SHO that her father had been killed by the appellant, after the arrival of the SHO on the spot. It appears that the story of PW-1 Salinder Kaur having seen the appellant, on the spot, with Phali Ex.P-1 in his hand, was created much later. That is the reason for delay in dispatch of the dead body to the Hospital. The version, which was cooked up, it appears, was intended to be incorporated in the inquest report that was to accompany the dead body and after that version was ready, inquest forms were filled in and the dead body was sent to the Hospital. 17. Another reason for our doubting the veracity of the prosecution case that PW-1 Salinder Kaur made statement Ex. PW-1/A at 10.15 a.m. is the fact that even though formal FIR Ex. PW-8/B purports to have been entered in the relevant register at 11.15 a.m., its copy reached the Illaqua Magistrate at 4 p.m., as is clear from the date and time of the receipt of FIR, noted by the Magistrate, on the first page of the FIR Ex. PW-8/B. No doubt, PW-8 Mohar Singh testified that he had dispatched …13… copy of the FIR at 12.05 p.m. to the Illaqua Magistrate, but his statement is falsified by the fact that the Magistrate has recorded the time of receipt as 4 p.m. It may be noted that Magistrate’s Court is not more than five minutes walk from the Police Station. 18. PW-1 Salinder Kaur’s testimony that her father and the deceased were on inimical terms, because of a land dispute, is also not corroborated. No witness has testified that the deceased and the appellant were having any dispute regarding any piece of land. Also, no document has been proved by the prosecution indicating that the deceased and the appellant had any dispute. 19. Evidence adduced by the prosecution, with regard to the alleged discovery of weapon of offence, at the instance of the appellant, is also of suspicious nature. Record of the statement allegedly made by the appellant is Ex. PW-5/A. The statement purports to have been made in the presence of PW-5 Manjit Singh and one Param Chand. Param Chand was not examined. PW-5 Manjit Singh denied that the appellant made disclosure statement in his presence. He was, of course, declared hostile, but he did not say anything in the cross-examination, indicating that appellant made any disclosure statement in his presence. PW-13 Khajana Ram stated that the statement was made to him by the appellant, after he arrested him. Time of arrest of the appellant, as per Memo of arrest, available on record, …14… is 2.30 p.m. Police ziminies available with the Assistant Advocate General show that after his arrest the appellant was interrogated and a detailed zimini was recorded. It must have taken atleast 30 minutes to write the zimini. Thereafter, record of the disclosure statement Ex. PW-5/A was prepared. Recording of this Memo would have also consumed not less than ten minutes. Another half an hour is supposed to have been spent in travelling from Police Station to the spot of recovery. That means recovery of the weapon could not have taken place before 4 p.m. However, PW-1 Salinder Kaur says that weapon Ex. P-1 had been recovered between 2.30 and 3 p.m., on the day of occurrence. She does not say that the weapon was got recovered by the appellant from the maize field, though she is one of the attesting witnesses of the recovery Memo Ex. PW-1/B, per which the appellant produced it from a maize field behind his house. Thus, the alleged discovery of weapon of offence, at the instance of the appellant is also quite doubtful. Prosecution did not examine Pradeep Singh, a nephew of the appellant, to whom he allegedly made extra-judicial confession. 20. In view of what has been stated hereinabove, we are of the considered view that the case of the prosecution does not stand established, beyond reasonable doubt. Hence, the appeal is accepted, judgment of the trial Court, convicting and sentencing the appellant for offence, …15… under Section 302 of the Indian Penal Code, is set aside and the appellant is ac quitted. He being in jail, serving out the sentence awarded by the trial Court, is ordered to be released, immediately, in case his detention is not required in any other case. Appeal stands disposed of. ( Surjit Singh ), J August 27, 2009(sd) ( Surinder Singh ), J