1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 125 of 1997 With Criminal appeal No. 21 of 1998. Reserved on : 2. 06. 2008 Date of decision: June 20, 2008 ____________________________________________________________ 1. Cr. Appeal No.125 of 1997 Kushal Bhardwaj and others. Appellants. Versus State of H.P. Respondent. For the appellants : Mr. T.R.Chandel Advocate with Mr. N.K. Thakur & Mr. Vinay Thakur, Advocates. For the respondent : Mr. P.K.Sharma, Additional Advocate General. ________________________________________________________ 2. Cr.Appeal No.21 of 1998. State of H.P. Appellant. Versus Kushal Bhardwaj and others. Respondents. For the appellant : Mr. P.K.Sharma, Additional Advocate General . For the respondents : Mr. T.R.Chandel Advocate with Mr. N.K. Thakur & Mr. Vinay Thakur, Advocates. ___________________________________________________________________ Coram Hon’ble Mr. Justice Surjit Singh, J. Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1?. Yes. _______________________________________________________________ Surinder Singh, J. S/Shri Khushal Bhardwaj, Naginder Sharma, Jagdish Thakur, Prem Negi, Dalip Kaisth, Tikender Singh and Vidya Sagar, hereafter to be referred as the accused, were tried in Session Trial No.6-S/7 of 1997/95 and acquitted of the offence of murder of Kuldip Dadhwalia Whether reporters of the Local papers are allowed to see the judgment? Yes. 2 punishable under section 302, 149 and 148 of the Indian Penal Code and except Dalip Kaisth who stood acquitted all others were convicted under section 307, 149 and 148 of Indian Penal Code for the attempt to commit murder of Ajay Kaushal (PW1) and each of them were sentenced as under: Sl.No. Names of accused Section(s) Period of sentence. 1. Vidya Sagar. (i) U/S 307 I.P.C. (ii)U/S 148 IPC. Rigorous Imprisonment for four years and fine of Rs.1,000/-. To pay a fine of Rs.500/-, in default simple imprisonment for a period of one months 2. 1.Khushal Bhardwaj. 2.Naginder Sharma. 3.Jagdish Thakur. 4.Prem Raj Negi. 5.Tikender Singh. U/Ss 307/149 IPC. (ii)U/S 148 IPC. Rigorous Imprisonment for four years and fine of Rs.1,000 each. Sentenced to pay fine of Rs.500/- ,in default of payment of fine, to undergo simple imprisonment for one month on each count. 2. Feeling aggrieved and dissatisfied by their conviction, accused- appellants in Criminal Appeal No. 125 of 1997, have assailed their conviction and sentence, passed by learned trial Court, whereas, the State in Criminal Appeal No. 21 of 1998 has challenged the acquittal of the appellants as well as that of Dalip Kaisth on the ground that the learned trial Court did not appreciate the evidence on record in its right perspective, which has caused the miscarriage of justice. 3. In brief, the prosecution case has been that in the year 1995, PW1 Ajay Kaushal was the student of M.A. First Semester of Political Science, PW2 Vijay Agnihotri, PW12 Sanjay Sharma, PW13 Vikaram Sharma PW8 Shashi Dutt, were students of Law and PW19 Sanjay Kapoor was a student of fourth Semester of Public Administration, in the Himachal Pradesh 3 University. Admittedly they were the activists of “Akhil Bhartiya Vidyarthi Parishad” (ABVP). The accused persons were also studying in the same University in different Departments and they were the activists and office holders of ”Students Federation of India” (SFI). 4. On 20.5.1995 in the morning at 10.00 a.m., the complainant party noticed that in the rain shelter of the University, the words “ABVP Welcomes” were written, which were rubbed out and replaced by the words “S.F.I. Welcomes”. 5. PW1 Ajay Kaushal and PW2 Vijay Agnihotri brought into the notice of accused persons Kushal Bhardwaj, Jagdish Thakur Vice President of S.F.I. and Tikender Singh. Accused Tikender Singh proclaimed that these words were written by those who have might and strength. There were about fifteen ABVP students present in the University Campus as most of the students, who were ABVP activist, had gone for canvassing in the election campaign, to Sulah Vidhan Sabha Constituency. 6. At about 11.30 a.m., PW1 Ajay Kaushal, PW2 Vijay Agnihotri, PW12 Sanjay Sharma were sitting in the stairs of the library of the University campus. It is alleged that the accused persons came armed with sword and iron rods. On seeing them, they ran towards the library hall. Accused persons followed them. They caught hold of Ajay Kaushal (PW1) and belaboured him in the Library Hall, as a result of which he sustained sharp-edged injuries and fell down. Thereafter, the accused persons escaped from the scene of occurrence. 7. Vijay Agnihotri and Sanjay Sharma, aforesaid, picked up Ajay Kaushal and took him to the dispensary located in the university campus. Thereafter, Ajay Kaushal was taken to Ripon Hospital in the ambulance where he was medically examined by PW11 Dr. Ravinder Mokta at 1.30 p.m. Thereafter he was referred to I.G.M.C. for treatment. The police was informed about the aforesaid incident. On receiving the information PW16 4 Head Constable Dula Ram of Police Station (West) Boileauganj, Shimla visited I.G.M.C. Hospital and recorded the statement (Ex.PA) of PW1 Ajay Kaushal under Section 154 of the Code of Criminal on the basis of which F.I.R. (Ext. PAA) was registered. 8. At about 12.30 P.M. on the same day i.e. on 20.5.95 the accused persons in furtherance of their common object allegedly attacked Kuldip Dhadwalia with swords and iron rods. He sustained injuries, to escape he ran towards University Cafeteria, the accused persons chased him with a common object to kill him and threw him down the hill side. He fell on Chariton Road below the Cafeteria from a height of about 50 feet as a result of which he sustained head injuries and became unconscious. Shri Dhadwalia was immediately rushed to the Indira Gandhi Medical College Hospital for medical treatment where he was attended by PW4 Dr. Surjeet Raina. The condition of Shri Dhadwalia was critical, as such, he was referred to PGI Chandigarh. He was hospitalized in PGI Chandigarh on 21.5.1995, he did not regain his consciousness till his death on 25.6.1995 at 7.40 p.m. 9. The autopsy of the dead-body of Kuldip Dhadwalia was performed by Dr. Munish Goel (PW7) at Chandigarh. In the opinion of the Doctor, Shri Dhadwalia had died due to head injury and multiple ante mortem injuries and septicemia thereof, which was sufficient to cause the death in the ordinary course of nature. All the accused persons, except accused Vidya Sagar, were arrested on 20.5.1995 from the University Guest House, whereas Vidya Sagar was arrested on 5.6.1995. 10. Pursuant to the statement, made under Section 27 of the Evidence Act, accused Vidya Sagar got effected the recovery of Dagger Exhibit-P3 vide recovery memo Exhibit-PX. 5 11. The Investigating Officer (PW20) took into possession the blood stained shirt Exhibit P1 and vest Exhibit P2, of Ajay Kaushal vide memo Exhibit-PB. 12. It was also alleged that the accused persons had broken the window panes of University library, its splinters Ext. P4 were also taken into possession from the library Hall vide memo Exhibit-PB. 13. After completing the investigation, the Police had filed the challan against the accused persons under the aforesaid sections and also under Section 3 of Prevention of Damage to Public Property Act. 14. Accused persons were accordingly charge-sheeted. They pleaded not guilty and claimed trial. 15. To prove its case, the prosecution examined its witnesses. Accused persons when examined, under Section 313 of the Code of Criminal Procedure, took up the defense that they were the office bearers of S.F.I. and were falsely implicated in this case by Ajay Kaushal and his accomplices, with a view to tarnish their brilliant career. 16. Accused persons were called to enter into their defense. They examined DW1 Ashwani Sharma, Senior Correspondent of the Indian Express, who had covered the incident aforesaid and sent the news item for its publication after contacting Director General of Police in the matter. At that time, he was given to understand that the activists of ABVP and S.F.I. had clashed at the university campus and Shri Kuldip Dhadwalia had jumped from the building in panic. The accused persons have placed and proved the copy of the news item Exhibit-DD published in Indian Express daily dated 22-5-1995. 17. After the complete trial, learned Additional Sessions Judge dis- believed PW18 Shashi Dutt and PW19 Sanjay Sharma who were examined to prove the offence of murder of Kuldip Dhadwalia and did not find any evidence worth the name against Dalip Kaisth accused therefore acquitted 6 the accused persons for the offence of murder and causing damage to the public property, whereas, all the accused persons except Dalip Kaisth were convicted and sentenced for attempt commit murder of Ajay Kaushal as aforesaid. 18. The convicts aforesaid, have assailed their conviction and sentence in their Cr. Appeal No. 125 of 1997 on the ground that the evidence of the prosecution is full of contradictions and replete, which does not inspire any confidence, whereas the State in its Cr.Appeal No. 21 of 1998 has assailed the acquittal of all the accused for the offence of murder and contended that the lapses of the Investigating Officer could not be a ground for the acquittal of all the accused. 19. Shri T.R. Chandel, learned counsel for the accused persons has vehemently argued that PW1 Ajay Kaushal, the complainant, has materially contradicted himself from the F.I.R. and the alleged eye witnesses have given different version of the alleged attack and there are sharp contradictions in their statements which were ignored by the learned trial Court. Therefore, their conviction for attempt to commit murder of Ajay Kaushal was wrong and illegal. He also argued that the said witnesses have made considerable improvements in their statements in the Court from that of the statements recorded under Section 161 of the Code of Criminal Procedure, further the medical evidence renders their testimonies highly doubtful. The learned counsel has referred the statements of PWs Sanjay Sharma and Dr. Sujeet Raina to prove that the dagger (Ex.P3) alleged to have been recovered at the instance of accused Vidya Sagar had no connection with the alleged crime as they have ruled its use in inflicting any of the injuries to the victim. It was vehemently argued that the statement of Shashi Dutt (PW18) and Sanjay Kapoor (PW19) are full of doubts so far as the alleged murderous attack by the accused persons on Kuldip Dhadwalia is concerned. Their statements were recorded on 26.7.1995 more than two 7 months after the alleged incident without any reasonable explanation regarding delay by the Investigating Officer which was rightly discarded by the trial court. There was also no mention in the FIR with respect to the incident which had taken place at 12.30 P.M. in which Kuldip Dhadwalia had sustained the fatal injuries. He further argued that the prosecution could not lead any evidence worth its name against Dalip Kaisth to prove the charges against him. In nut shell it is submitted that the judgment of acquittal passed under Section 302, 149 and 148 is perfectly legal but canvassed that the conviction of the accused persons deserves to be set-aside. 20. Contra, Shri P.K. Sharma, learned Additional Advocate General has supported the conviction and sentence of the accused persons under Section 307, 149/148 I.P.C. and vehemently argued that the statements of PW18 and PW19 namely, Shashi Dutt and Sanjay Kapoor are worth inspiring confidence. They had seen the accused persons attacking Kuldip Dhadwalia and pushing him from the hill side resulting the head injury to him which caused his death. These facts were supported by the Doctors, as such there is enough material for converting the acquittal of the respondents under Section 302, 148/149 I.P.C. into conviction. 21. We have given our thoughtful consideration to the rival contentions of the parties and have very carefully gone through and reappraised the evidence on record. 22. The prosecution has examined PW1 Ajay Kaushal complainant injured PW2 Vijay Agnihotri and PW12 Sanjay Sharma to prove the offence of attempt to murder whereas, PW18 Shashi Dutt and PW19 Sanjay Kapoor were examined to prove the charge of committing murder, of Kuldip Dhadwalia, by the accused persons. 23. First of all, we would deal with the charge of attempt to commit murder of Shri Ajay Kaushal (PW1) and re-evaluate the relevant evidence led by the prosecution to prove it. 8 24. PW6 Dula Ram Head Constable vide Rapat No. 18 dated 20.5.1995 recorded in Police Station Boileauganj, on having been informed about the incident at 2 p.m., proceeded to Indira Gandhi Medical College and Hospital Shimla where PW1 Ajay Kaushal was hospitalized. On reaching there he recorded his statement Exhibit PA under Section 154 of the Code of Criminal Procedure wherein he had stated that at about 11.20 a.m to 12.00 noon, he along with his friends was sitting on the stairs of the library in the University campus, in the meanwhile, 10/12 boys came armed with swords and iron rods in their hands. Accused persons Naginder and Tikender had asked accused Vidya Sagar to finish Ajay Kaushal. In order to escape himself, he (PW1) ran towards the stairs. Accused Naginder and Tikender caught hold of him and Sagar accused hit him with the sword on his left arm. Accused Prem Raj Negi gave a blow of sword on his back which resulted into profuse bleeding. Jagu (Jagdish Thakur) gave a sword blow on his head and accused Khushal gave him the blow of sword on his arm and hands, as a result of which he fell down. The other boys also hit him with iron bars, thereafter they fled away from the spot. He was taken to Ripon Hospital for treatment by his friends and the incident was witnessed by Vijay (PW2), Kuldip Thakur (not examined) and other boys. The Policemen were also present on the spot. 25. On this statement (Ex.PA) a case under Section 147, 148, 149 and 307 of the Indian Penal Code was registered in Police Station, Boileauganj on the same day at 3.45 P.M. vide F.I.R. Exhibit PAA. The distance between the place of incident and Police Station is recorded one and half km in the FIR. However, there was no reference of the second episode, in which Kuldip Dhadhwalia sustained injuries around 12.30 p.m. 26. As PW1 said Ajay Kaushal complainant, has given a different version. According to him, there were only seven accused persons armed with swords and iron rods (not ten to twelve persons as stated in the F.I.R.) 9 He further stated that except Shri Sagar, all were having swords in their hands and accused Sagar was having iron rod in his hand. ( In the FIR he is alleged to have attacked him with a sword). He was sitting with Vijay Agnihotri (PW2), Sanju (PW12) [not named in the FIR] and Kuldip in the stairs of the library in the university campus. On seeing the accused persons, they ran towards the library room but before they could reach inside the room, first blow of sword was given on his back by Prem Negi and after that he was able to get inside the room and he picked up a library stool in order to defend himself from the blows of sword and this material fact was not mentioned by him in the FIR, when confronted with it he could not give any cogent explanation. Further, according to him, Jagdish accused gave the second blow of sword on his fore-head, which caused the bleeding injury. Sagar accused gave him third blow with the khukhri on his left hand, whereas, in the statement Exhibit-PA, he is alleged to have given him the blow with a sword and in the earlier part of his examination-in-chief he is alleged to have an iron rod in his hand. He further stated that Khushal accused hit him with sword on the fingers of his left hand which is the fourth blow,, whereas, in the F.I.R. Khushal is alleged to have given him Khukhri blow and thereafter he fell down. He was taken to the Ripon Hospital by Vijay Agnihotri, Sanju and Kuldip and then to I.G.M.C. Shimla. He stated that his statement was recorded at 2.00 P.M. whereas in Exhibit PA the time of his statement is recorded as 3.00 P.M. 27. In his cross-examination he has admitted that he was an activist of ABVP and the accused persons belonged to SFI. He also admitted that accused Khushal Bhardwaj was the President of the S.F.I. unit of the University and Jagdish Thakur was the Vice President. It is also admitted by him at the time of recording his statement Exhibit-PA, PW Vijay Agnihotri and Sanjay Sharma alias Sanju were with him and these two witnesses had taken him to the Dispensary of University after sustaining the injuries. Vijay 10 Agnihotri and Sanju remained with him throughout from the library to dispensary and thereafter in the Hospitals. He stated that he had given the names of the accused persons in his statement Exhibit PA., but when confronted with portion ‘A’ to ‘A’, of his statement Ex.PA their names did not find mention. He gave the sequence of the injuries inflicted by each of the accused. He has specifically stated that Prem Negi accused had given him the first blow of sword on the entrance of the library and the second blow was given on his fore-head by Jagdish accused and third by Sagar accused on his elbow of the left arm. He was carrying a library stool when the third blow was given by Sagar accused and the stool fell down from his hand. He was confronted with portion B to B of his statement Exhibit PA wherein it was not mentioned. He further admitted that he did not state to the Police that Prem Negi had given the blow on his back after Sagar had given him blow on his left arm. However, he was specific in his narration that Prem Negi had given him the first blow on his back. The name of Dalip accused was not mentioned in Exhibit-PA nor any role was assigned to him. He stated that he heard about the second incident in the IGMC Hospital itself when Vijay Agnihotri and Sanju both were with him. He has denied the suggestion that he along with other ABVP activists had attacked the SFI activists near the stairs of the library of the University. 28. PW2 Vijay Agnihotri who was sitting with Ajay Kaushal on the stairs of the library of the University, has stated that accused Naginder and Takinder had told Sagar (Vidya Sagar) that Ajay Kaushal was the person sitting there. They identified Ajay Kaushal and told that he be done to death. Then all of them sitting on the stairs ran inside the library room. While running, accused Khushal and Takinder caught hold of PW1 Ajay Kaushal, but he got rid of him of their clutches but again he was caught inside the library. Ajay Kaushal was having a library stool in his hand for defending himself. Vidya Sagar gave a blow with Khukhri on the elbow of the left hand 11 of Ajay Kaushal. Then Jagdish Thakur had given a blow with a sword on the head of Ajay Kaushal and thereafter Prem Negi gave a blow with a sword on the back of Ajay Kaushal. When Ajay Kaushal was about to fall, accused Khushal gave a sword blow on the finger of left hand of Shri Ajay Kaushal and the other accused persons gave beatings with iron rods and kick to Ajay Kaushal. Thereafter, they ran towards the Cafeteria. He along with Sanjay helped Ajay Kaushal to stand up and took him to the dispensary of the University through short-cut. The wounds were washed in the dispensary and the injured was taken in the Ambulance to the Ripon Hospital. He along with Sanjay accompanied him. X-ray was conducted in the Ripon Hospital. He telephonically contacted somebody in the University from the Ripon Hospital and then he came to know about the second incident about causing injuries to Kuldip Dhadwalia. When he reached IGMC alongwith Sanju and Ajay Kaushal, Kuldip Dhadwalia was already brought there in an injured condition and on the same night, he was referred to PGI Chandigarh. 29. In his cross-examination, he has stated that at the time when the first blow was given to Ajay Kaushal by Sagar, he was not having stool in his hand. He has stated that neither he saw the second incident relating to Shri Kuldip Dhadwalia nor he did see Kuldip Dhadwalia on the spot during the first incident. He also did not see the occurrence which took place inside the library room and he only went there after the occurrence and the accused persons had already left the place. Further, according to him, even Sanjay (PW12) did not go towards the Cafeteria area of the University and none of them had seen the accused persons on their way from Library Hall to the Dispensary. Thus on appreciation we find that his testimony goes contrary to the version of PW1 Ajay Kaushal with respect to the injuries and weapon used by the accused persons. 12 30. PW12 Sanjay Sharma, has stated that around 11.30 A.M. to 12.00 Noon, he was sitting on the stairs of the library of the University along with Ajay Kaushal PW1. All of a sudden, the accused persons came there armed with swords and khukhri in their hands and accused Naginder and Tikender identified Ajay Kaushal and told accused Vidya Sagar that they should give beatings to Ajay Kaushal and kill him. He gave a different sequence of the events. He stated that first blow was given by Prem Negi accused with a sword on the back of Ajay Kaushal when he was entering the door of the library hall. Thereafter Ajay Kaushal ran towards the general section of the library and at that time, second blow was given by Jagdish accused with a sword on his fore-head. Ajay Kaushal picked up a Library stool to defend himself and during that process, Vidya Sagar accused gave the third blow of khukhri on the left elbow of Ajay Kaushal. Thereafter, the accused persons encircled him and accused Khushal gave him the fourth blow of sword on the left finger of Ajay Kaushal. The other accused persons hit him with iron rods and during this process, the glass-panes of the door had broken and the accused persons fled away. According to him, he had seen the occurrence from a distance of about 25 feet and then he went along with Vijay Agnihotri to Ajay Kaushal. Subsequently Kuldip Thakur also reached there and then they took Ajay Kaushal to the General room, thereafter to the dispensary. Vijay Agnihotri took Ajay Kaushal inside the dispensary, then they removed him to Ripon Hospital in the Ambulance. He along with Vijay Agnihotri was with the injured in the hospital till his hospitalization in IGMC hospital Shimla. Later he is alleged to have witnessed the recovery of Khukhri (Dagger) Exhibit P3 allegedly at the instance of Sagar accused. 31. In his cross-examination, he also stated that he did not see Kuldip Dhadwalia on that day. He denied having made any statement to this effect that he had seen him on that day when confronted with his statement Ex.DB recorded under Section 161 Cr.P.C. He is alleged to have seen the incident 13 from behind the pillars. Further he has stated that Kuldeep Thakur (not examined) had accompanied them upto dispensary, thereafter he met them in IGMC Hospital Shimla. He was also confronted with his statement Ex.DB, wherein there was no mention of Library stool taken by Ajay Kaushal to defend himself. Thus it has been seen that this witness has also given a different version about the blows given by the accused persons and considerably improved his earlier statement Ex.DB. 32. The aforesaid alleged eye witnesses have stated that PW1 Ajay Kaushal got five injuries on his person i.e. four with the sharp edged weapons and many others with iron rods and also with kicks and blows. But this fact is not corroborated by the medical evidence. PW11