IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr. Appeal No. 285 of 1998 Reserved on: July 6, 2010 Date of Decision : November 3, 2010 State of H.P. …Appellant. Versus: Santosh Kumar & Ors. …Respondents. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 Yes For the appellant: Mr. Vivek Thakur, Addl A. G. For all respondents : Mr. Rakesh Jaswal, Advocate except respondent No.7 Sanjay Karol, J. For an offence, which is alleged to have been committed on 3.1.1996, accused were put to trial. In terms of judgment dated 27.6.1997 passed by the learned Addl. Sessions Judge, Mandi, in Sessions Trial No. 18 of 1996 titled as State of H.P. vs. Santosh Kumar & Ors., accused persons stand acquitted of the charged offence. 2. It is the case of the prosecution that students of Senior Sec. School, Sundernagar had fought amongst themselves in the Canteen of the school. Even though the matter was compromised but however the accused had proclaimed that they 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 would take revenge. Sh. Yadvinder (PW-29) heard accused proclaiming the same. Sh. Mohinder Singh (PW-27), a student, who resides at Mahadev Chowk, Sundernagar boarded a bus near the community hall, Sundernagar. When bus reached S.O. Chowk Colony he saw the accused getting down and after taking out knife (khukhri) from the pocket gave blows with the same to Jiwan Gopal who was standing on the road. All the accused repeatedly gave beatings to Jiwan Gopal in his presence. Accused Naresh Kumar (Accused No.3) gave blow with a Motorcycle chain, accused Anil Kumar (Accused No.4) give blow with a knife and accused Santosh Kumar (Accused No.1) gave blow with a khukhri. Accused Bhutto alias Narender Kumar, (Accused No.2), Ishwar Chand (Accused No.5) and Gopal Singh (Accused No.6) also gave blows with fists and kicks. Immediately thereafter accused boarded the bus which was stationary and they got down and ran towards Tunahi. Many persons present at the spot including S/Sh. Birbal (PW-3), Atter Singh (PW-4), Baldev Krishan (PW-5), Shankar Dass (PW-6), Bhim Singh, driver of the bus (PW-7), Ashok Kumar (PW-8), also witnessed the incident. When some of them tried to intervene and catch them A-4 after brandishing knife proclaimed that he would also kill them. Having said so the accused ran away from the spot and went to the shop of Sh. Subhash Chand (PW-28), uncle of A-2 with whom they confessed having murdered Jiwan Gopal of Upper Valley with a khukhri. A-1 took out khukhri from his pant and asked him to hide the same. He also heard A-1 and 3 A-2 discussed their plan of further going to Manali and Rampur in the presence of PW-28. Accused Prem Singh (Accused No.9) was asked to arrange for the vehicle which was driven by accused Mani Ram (Accused No.8). 3. On the spot Sh. Ashok Kumar (PW-8) telephonically informed Police Station, Sundernagar about the incident. The call was received by Sh. Amba Dutt (PW-31), who recorded report (Ext. PAA) dated 3.1.1996 at 2.50 p.m. and proceeded to the spot. Before the police could arrive Atter Singh (PW-4) took the injured to the hospital where he was declared dead. Upon reaching the spot, Sh. Amba Dutt made preliminary inquiry and recorded statement (Ext.PY) of PW-28. He alone made inquiry for 2½ to 3 hours till the time Sh. Hans Raj (PW-33), SHO Police Station, Sundernagar reached at the spot. Statement (Ext. PY) was sent to police station on the basis of which F.I.R. No.9/96 dated 3. 1. 1996 under sections 302, 34, 212 IPC (Ext. PZ) was registered by Sh. Yudvir Singh (PW-15). Same day SHO recorded statements of the spot witnesses. Spot was photographed and postmortem of the body was got conducted through Dr. Balbir Singh Verma (PW-18) who submitted his postmortem report (Ext. PGG). 4. Van in which all the accused were travelling towards Rampur was apprehended on 8.1.1996 by PW-33 at Luhri. The accused were interrogated by the police in the presence of S/Sh. Ramesh Kumar (PW-24), Yuvraj (PW-25), Subhash Chand (PW- 28) and A-1 made a disclosure statement (Ext.PH) dated 4 9.1.1996, A-4 made a disclosure statement (Ext. PF) dated 9.1.1996 and A-6 made a disclosure statement (Ext.PJ) dated 9.1.1996. They also got recovered weapons of offence i.e. khukhri vide recovery memo (Ext. PO) dated 9.1.1996, A-4 got recovered khanjar vide recovery memo (Ext. PM) dated 9.1.1996 and A-6 got recovered ‘Grip’ vide recovery memo (Ext. PN) dated 9.1.1996. From the spot police took into possession blood soaked samples of earth. Sealed samples were sent to F.S.L. Laboratory for chemical analysis and their reports obtained. Clothes belonging to A-3 and A-4 soiled with blood of the deceased were taken into possession by the police vide recovery memos Ext. PW/1 dated 9.1.1996, Ext.PW/2 dated 9.1.1996 and Ext.PW/3 dated 9.1.1996 respectively. With the completion of investigation challan was presented in the Court for trial. 5. Accused were charged for having committed an offence punishable under Section 302 read with Section 34 IPC to which they did not plead guilty and claimed trial. 6. In order to prove its case prosecution examined 33 witnesses and statements of the accused under Section 313 Cr.PC were also recorded. Some of the accused took a common defence. They claimed innocence, false implication and alleged to have been subjected to third degree methods. 7. Certain facts are undisputed. It stands proved on record that Jiwan Gopal son of Sher Singh died of injuries suffered by him in the incident in question. Doctor (PW-18) has opined the cause of death to be haemorrhagic shock due to 5 femoral artery trauma. PW- 4 made an attempt to take the injured to the hospital but he died at the spot. Dead body stands identified by Gopal Singh (PW-2). 8. It has come on record that Sh. Sher Singh, father of the deceased was working as a driver with the Minister in the Govt. of H. P. 9. Most of the prosecution witnesses have turned hostile. We shall deal with their statements separately but however from their testimonies unanimously it stands established that police had threatened, detained and given beatings not only to the accused but also some of the witnesses. Testimonies of the witnesses to this effect remains uncontroverted. It has come on record that the spot witnesses, including the shop keepers did not know the identity of the assailants. Witnesses were threatened and beaten up by the police. Uncontroverted testimonies of PW-7 & PW-9 are on record to this effect. 10. It is also a matter of record that vide order dated 13.2.1997 accused Sushil Kumar was acquitted of the charged offence for the reasons that except for a bald statement based on suspicion nothing inculpatory was found against him. 11. We are of this view that State has acted unfairly in investigating the matter. Serious offence of murder had taken place in broad day light at S.O. Chowk, Sundernagar. It is unfortunate that a young boy was killed but the administration failed to take any action promptly and failed to properly 6 investigate the matter to ensure real culprits are tried in accordance with law. 12. As per the version of PW-31, police learnt about the incident on 3.1.1996 at about 2.30 -2.50 P.M. Sundernagar is not a big town. Police Station is close by, yet it took the SHO (PW-33) to reach the spot more than two hours. It is not that he was not present at the Police Station or was otherwise busy in some important/urgent matter requiring his personal attention. PW-31 went to the spot, recorded the statement of PW-28 on the basis of which FIR (Ext. PZ) was registered. In this case FIR was registered on 3.1.1996 at about 5.15 P.M. and yet copy of the same was got received from the concerned Magistrate on 4.1.1996 at about 10.45 A.M. Court premises and residence of the Magistrate is also close-by. PW-33 admits that the copy was sent on the day of crime. Then why did it take more than 16 hours to cover a distance of one and half minutes walking distance from the Police Station has not been explained. 13. Now PW-33 states that he had recorded the statements of the spot witnesses on 3.1.1996 itself. At the time of incident Sh. Ashok Kumar (PW-8) was posted as a Fireman in the Fire office. He heard noise coming from the side of S.O. Chowk and went there. He found one boy lying on the side of the road in front of a shop. Many people had gathered there. From his office he telephonically called the police station but since the call did not mature he then gave a call to the SDM, Sundernagar, who in turn asked him to again call up the police station and gave the 7 information. Now this version of his remains uncontroverted. Who is this SDM, why he has not been examined, having learnt about such a serious crime what action did he take has not been explained by the prosecution. Now if the police and the administration were already aware of a serious crime of murder of a young boy in broad day light then why was the FIR not immediately registered on the basis of this information. 14. According to Sh. Amba Dutt (PW-31), none of the spot witnesses from whom he made inquiries, were knowing the accused from before. In fact he states that “I conducted enquiry from the shopkeepers and the Firemen but did not record the statements. Those shopkeepers and Firemen told during enquiry that bus came and 5/7 boys came down from the bus and gave beatings to the injured but they told that the names of those boys are not known to them and they did not know who they were”. 15. Law on test identification parade is now well settled. The Apex Court in Ramanbhai Naranbhai Patel & Ors. vs. State of Gujarat (2000) 1 SCC 358 after considering its earlier decisions in State (Delhi Admn.) vs. V. C. Shukla (1980) 2 SCC 665 and Mohanlal Gangaram Gehani vs. State of Maharashtra, (1982) 1 SCC 700 has held that evidence of identification of accused for the first time in Court by an eye witness, when not known from before and when no test identification parade held, may not be irrelevant and inadmissible and the real credence of 8 such evidence would depend upon the facts and circumstances of each case. 16. In Munna vs. State (NCT of Delhi) (2003) 10 SCC 599, the Apex Court has held that “in a case where an accused himself refuses to participate in a test identification parade, it is not open to him to contend that the statement of the eye- witnesses made for the first time in Court, wherein they specifically point towards him as a person who had taken part in the commission of the crime, should not be relied upon.” 17. In Santosh Devidas Behade & Ors. vs. State of Maharahstra (2009) 13 SCC 680, the Apex Court held that where identity of the accused is known to the prosecution witnesses from before holding of test identification parade is not obligatory. 18. In Dana Yadav alias Dahu & Ors. vs. State of Bihar (2002) 7 SCC 295, the Apex Court has held as under:- “Failure to hold test identification parade does not make the evidence of identification in court inadmissible, rather the same is very much admissible in law. Question is, what is its probative value? Ordinarily, identification of an accused for the first time in court by a witness should not be relied upon, the same being from its very nature, inherently of a weak character, unless it is corroborated by his previous identification in the test identification parade or any other evidence. The previous identification in the test identification parade is a check value to the evidence of identification in Court of an accused by a witness. The purpose of test identification parade is to test the observation, grasp, memory, capacity to recapitulate what 9 a witness has seen earlier, strength or trust worthiness of the evidence of identification of an accused and to ascertain if it can be used as reliable corroborative evidence of the witness identifying the accused at his trial in court. If a witness identifies the accused in court for the first time, the probative value of such uncorroborated evidence becomes minimal so much so that it becomes, as a rule of prudence and not law, unsafe to rely on such a piece of evidence. Belated identification of the accused in court for the first time after more than two years from the date of the incident should not form the basis of conviction, especially when the same is not corroborated by either previous statement made before the police or any other evidence. In exceptional cases only evidence of identification for the first time in court, without the same being corroborated by previous identification in the test identification parade or any other evidence, can form the basis of conviction.” 19. This view has been reiterated in Malkhansingh & Ors. vs. State of M.P. (2003) 5 SCC 746, Ashfaq vs. State (Govt. of NCT of Delhi) (2004) 3 SCC 116, Munshi Singh Gautam (Dead) & Ors. vs. State of M.P. (2005) 9 SCC 631, Amitsingh Bhikamsingh Thakur vs. State of Maharashtra (2007) 2 SCC 310, Heera & Anr. vs. State of Rajasthan (2007) 10 SCC 175, Mohd. Kalam alias Abdul Kalam vs. State of Rajasthan (2008) 11 SCC 352 & Mahabir vs. State of Delhi (2008) 16 SCC 481. 20. Admittedly, in this case police did not carry out any identification parade. In fact according to the spot witnesses, 10 accused were not known to them from before and after the incident saw them for the first time in the Court. Now if this was so then how is it that names of the accused find mentioned in their statements recorded u/s 161 Cr.PC. which duly stands proved in Court. 21. Now Amba Dutt (PW-31) also did not know Subhash Chand from before. If this was so then how was Subhash identified by Amba Dutt and how did he come to know that accused had confessed with Subhash Chand of their guilt. PW-33 did not interrogate Subhash Chand at the spot as is so admitted by him. 22. FIR was registered on the basis of the statement (Ext.P5) alleged to have been made by PW-28. It cannot be disputed that Sh. Subhash Chand (PW-28) does not have any shop at S.O. Chowk. His shop is at Mahadev. It is not the prosecution case that PW-28 came to the spot after hearing about the incident. He also does not state so. This renders the presence of PW-28, at the spot to be doubtful. The police has not explained it either. 23. In this background version of Sh. Subhash Chand acquires significance. According to him police had come to his shop at Mahadev on 3.1.1996 at about 8.45 P.M. His signatures were taken on several papers. He is declared to be a hostile witness. Undoubtedly he is uncle of A-2 and perhaps, as is sought to be urged by the State, may have resiled from his statement (Ext.PY) with which he was confronted but however 11 he has explained that he signed papers after police had threatened and pinched him. He states that he was called to the police on 4th, 5th & 7th January, 1996. His wife was also called twice to the police. On one occasion about 15 to 16 persons from the Colony were also made to sit outside and when the accused were searched he was called for and his signatures were taken. We do not find this version of his to be false and the possibility of the police anti-timing the FIR on the basis of his statement extracted under threats and coercion cannot be ruled out. 24. Sh. Yadvinder (PW-29) in Court has deposed that the police had given him beatings. He was called to the police station and given beatings there. 25. Sh. Bhim Singh (PW-7), driver of the bus admits that he does not recognize the accused persons in the Court. Even according to him 3-4 boys and shop-keepers were called by the police to the police station. There shop keepers were identified by him to be S/Sh. Birbal (PW-3) and Baldev Krishan (PW-5). Even he admits that he and the conductor of the bus was given beatings and the witnesses terrorized by the police. All of them were called 3-4 times. 26. According to Fireman Attar Singh (PW-4), he did not know anyone amongst the boys who had given beatings to the deceased or had brandished knife in their hand. He further states that even staff members had told him that they did not recognize the boys who killed the deceased. Importantly, this witness has not been cross-examined. He is also not declared 12 hostile. It only lends credence to the version of Sh. Shankar Dass (PW-6), who is also a fireman and though declared hostile has deposed that he did not know the names of the boys running away from the spot or had seen them in the Colony earlier. He could not recognize anyone of the accused carrying khukhri in their hands. 27. PW-3 has a shop adjoining to the shop of PW-5. In front of the said shop murder took place. According to PW-3 he saw 5-6 boys getting down from the bus and give beatings to a boy who was standing in front of his shop. He could only recognize accused Sushil Kumar (Accused No.7) and A-4 present in the Court. He states that A-7 gave a blow with Khukhri and A- 4 gave a blow with knife. Injured fell down and people gathered at the spot. When accused tried to flee they were stopped by passers-by. However one of the boys which he does not specifically name, after brandishing knife proclaimed that he had killed one and would also kill others if he was chased. Importantly he contradicts his own version by stating that “I cannot exactly identify the boy who gave khukri blow because I saw him recently but people were telling his name as Santosh”. Importantly, he admits that two lady constables were standing on the side of his shop. If this was so then why no action was taken by them. In fact they were spot witnesses and ought to have reported the matter immediately. They have not been examined in Court or associated during investigation. This witness admits that he did not know any of the accused persons 13 from before nor had he ever spoken with them earlier, nor had he seen the accused thereafter till the time of his examination in Court. Then how could he name Anil Kumar. It is the case of the prosecution that it was A-1 who gave blows with Khukhri and not A-7 as is so deposed by PW-3. He was confronted with his statement Mark ‘A’, wherein his statement that accused after brandishing knife had proclaimed that they would kill another person, was not there. He could not state the colour of the clothes which the accused were wearing. Importantly, he admits that his statement was recorded same day on the spot at about 6.00 p.m. Now if this was so then how is it that names of the accused find mentioned in his statement Mark ‘A’. Admittedly, no identification parade was got done by the police. 28. Now, according to Sh. Baldev Krishan (PW-5), three boys had got down from the bus one of which was identified by him to be accused Anil Kumar present in Court. The boys gave beatings to the deceased with fist blows. He is silent about the fact that any of the accused gave a blow with a knife to the deceased or that after brandishing the same he proclaimed that he would also kill others. He also admits not to have known any of the accused from before. Importantly, this witness has made several improvements. He was confronted with his statement recorded by the police (mark ‘C’), wherein the fact that he could recognize the boys if produced before him was not recorded. His version that the accused proclaimed that he would kill those who chased him was not recorded there. 14 29. No doubt these two witnesses have identified A-4 to be one amongst the assailants but however their statements, in view of other contradictory material on record, alone cannot be relied upon to hold the accused guilty of the charged offence. 30. Importantly, it has come in the version of PW-8 that part of the investigation was also carried out by Dy.SP. Surprisingly there is no reference of Dy.SP in the entire investigation. Father of the deceased was personal staff member of the Minister in the State Govt. Possibility of the investigation being influenced cannot be ruled out. Why has police not examined them is not clear. The possibility of they deposing under the threats of police cannot be totally ruled out. Even otherwise there are several embellishments, improvements and contradictions in their statements. It would be extremely unsafe to rely upon their statements to convict the accused. More so in the backdrop of our earlier discussions. 31. PW-9 has been declared hostile. He also does not support the prosecution and nothing inculpatory has come out in his statement. 32. Prosecution has next placed reliance on the statements of S/Sh. Karam Chand (PW-10), Dugla Ram (PW-11), Chuhru Ram (PW-12), Roshan Lal (PW-13) and Raghu Ram (PW-30) to prove recovery of weapons of offence and other articles. 33. PW-13 has witnessed the disclosure statement and the recovery of the weapons of offence. PW-13 has not supported the prosecution case at all. He was declared hostile and cross- 15 examined. Nothing inculpatory could come out in his statement against the accused. He is witness to recovery memo (Ext.PX) and disclosure statement (Mark ‘J’). Importantly, these were also witnessed by Hira Lal, Vinod and Soju Ram. Prosecution has chosen not to examine them. PW-12 is a co-villager and an illiterate person. It has come on record that police had called several people for interrogation. It has also come on record that even otherwise local people were present at the time when interrogation was going on. Investigating Agency chose to make a co-villager of the deceased as a witness and not associate any local person. Further, S/Sh. Karam Chand (PW-10) and Dugla Ram (PW-11) are also close relatives of the deceased. They are not even residents of the area. Why police alone chose them as witnesses has not been explained by them. Statement of PW-10 with regard to confessional statement made by A-3, A-4 and A-1 leading to recovery of the weapons of crime i.e. Khanjar (Ext.P- 9), grip (Ext.P-14) and khukhari (Ext.P-13) does not inspire confidence. This witness has made several improvements from his statement (mark’ H’) with which he was confronted. That fact by itself may not be a reason to disbelieve his statement but however most importantly he admits that “the accused refused to tell anything first and thereafter they were given 1/2 slaps and thereafter accused gave the statement one by one. The beatings were given 5/10 minutes. Khem Chand is my cousin brother. 1/2 slaps were given only by the SHO and no other 16 police men gave any beating. After the slaps were given they became lagy (Susat) and told that they would tell the same.” 34. It is the version of PW-11 that “police named the accused and then that accused went and brought out the article and therefore, I named that accused in my statement. It is correct that I told in my statement to the police that Naresh accused brought out one motor cycle chain by putting his hand in