IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.A No.284 of 1998 Decided on : May 6, 2010 State of H.P. …Appellant. Versus Parma Nand and others …Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 Yes. For the Appellant : Mr. Ramesh Thakur, Assistant Advocate General. For the Respondents : M/s M.L. Chauhan & T.C. Sharma, Advocates. Surjit Singh, J (Oral) This appeal by the State, under Section 378 of the Code of Criminal Procedure, is directed against the judgment dated 23rd March, 1998 of learned Sessions Court, whereby respondents Parma Nand, Sohan Lal and Mohan Lal, who were tried for offences, under Sections 302 & 201, read with Section 34 of the Indian Penal Code, have been acquitted. 2. Case of the prosecution, which led to the trial of the respondents, may be summed up thus. Respondent Mohan Lal has a Dhaba, at a place called Kingal, on National Highway No.22. He had employed respondent Sohan Lal, PW-12 Jagdish Kumar and Jawahar (proclaimed Whether reporters of the local papers may be allowed to see the judgment? …2… offender), as servants, to assist him in running the Dhaba. On 4th May, 1993, deceased Rajinder alias Raju, accompanied by his brother (probably Yash Pal, serving at Kullu), went to the Dhaba of respondent Mohan Lal. They were having a bottle of liquor with them, which was consumed by them and respondent Mohan Lal. After consuming liquor, deceased and his brother left the Dhaba around 8 or 8.30 p.m. Around 11.45 or 12 in the night, Raju returned to the Dhaba of respondent Mohan Lal, who, by that time, had retired to the sleeping portion in the building of Dhaba. PW-12 Jagdish Kumar was present in the Dhaba. Raju demanded meals. He was told that only Kari and Daal were available at that time. On being told so, Raju got annoyed and demanded that meals proper be served. PW-12 Jagdish Kumar went to inform respondent Mohan Lal, who came to the Dhaba. There was an altercation between respondent Mohan Lal and Raju. Respondent Mohan Lal pushed Raju out of the Dhaba. In the meanwhile, respondent Sohan Lal, proclaimed offender Jawahar and respondent Parma Nand came outside the Dhaba. They kicked deceased Raju and pushed him down a wall. Deceased, after being pushed down, went towards the field of PW-1 Nanak Chand, who also runs a Dhaba nearby. He was chased by respondents Sohan Lal and Parma Nand, as also proclaimed offender Jawahar. All the three overpowered deceased Raju near a bundle of barbed …3… wire and gave him a thrashing. Respondents Sohan Lal and Parma Nand were armed with Dandas. Proclaimed offender Jawahar was carrying a Khoncha. They used the Dandas and the Khoncha to hit the deceased. 3. PW-12 Jagdish Kumar also followed the respondents to the site where the deceased was beaten up. He tried to intervene but he too was threatened. He then returned to the Dhaba. He went to PW-13 Parkash and informed him about the beating of the deceased by the abovenamed respondents and proclaimed offender Jawahar. Prakash then went to inform PW-11 Gian Chand, while Jagdish Kumar (PW-12) himself went to inform respondent Mohan Lal. Then all the four, i.e. PW-12 Jagdish Kumar, PW-11 Gian Chand, PW-13 Parkash and respondent Mohan Lal, went to the field. By that time proclaimed offender Jawahar, respondents Sohan Lal and Parma Nand had killed the deceased. Respondent Mohan Lal told PW-12 Jagdish Kumar not to tell anybody about the incident. Respondent Sohan Lal was having blood stains on his clothes, which he washed at the Dhaba of respondent Mohan Lal. Khoncha was washed by proclaimed offender Jawahar at the same Dhaba. 4. Dead body was spotted in the field of PW-2 Nanak Chand, by his son PW-1 Chaman Lal, in the noon. He informed his father PW-2 Nanak Chand, who in turn informed the police, telephonically. Information conveyed …4… by PW-2 Nanak Chand to the police, telephonically, was entered in the Rojnamcha. Copy of the relevant entry is Ex. PJ. PW-19 SHO Rikhi Ram then went to the spot. He saw the dead body and prepared report Ex. PW-19/A, which he sent to the Police Station. Case was registered on the basis of that report, vide FIR Ex. PG. Scene was got photographed. Site plan was prepared. Several articles, which were found on the spot, like bundle of barbed wire (Ex. P-12), blood stained soil (Ex. P-13), stone (Ex. P-14), Dandas (Ex. P-6 to Ex. P-8), were taken into possession. Inquest was conducted and report Ex. PA was prepared. Dead body was sent to the hospital for postmortem examination. 5. PW-14 Dr. Naresh Sharma conducted postmortem and found the following 38 ante-mortem injuries on the dead body: “1. Lacerated wound right side scalp over mastoid process. 2. Lacerated wound right side forehead. 3. Lacerated wound left side forehead. 4. Missing 5. Lacerated wound running laterally from lateral camthus of left eye. 6. Lacerated wound left occipital region. 7. Lacerated wound occipital bone left side underlying bone fractured. 8. Lacerated wound occipital parietal region underlying bone was fractured. …5… 9. Lacerated wound left parieto occipital bone underlying bone was fractured. 10. Lacerated wound left parietal bone. 11. Lacerated wound parietal bone right side underlying bone was fractured. 12. Lacerated wound over parietal bone right side. 13. Bluish discolouration of right upper eyelid. 14. Lacerated wound 4.5cm x 1 cm cheek right side 3 cm lateral to nasio labial furrow. 15. Lacerated wound 5.5. cm semilunar over ridge of nose x .5 cm more towards left side 1.5 cm below nasion. Fracture underlying both nasal bones. 16. Abrasion 7 cm x 3 cm on right cheek. 3 cm inferior to right lower eyelid. 17. Lacerated wound 5 cm x 1 cm on the cheek 2.5 cm below and parallel to left lower eyelid. 18. Abrasion horizontal in position 4.5 cm over anterior aspect of thigh .5 cm to medial epicondyle of femur. 19. Abrasion 5 cm x 4 cm over lumbo sacral region left side. 20. Abrasion 4 cm x 3 cm superior to injury No.19. 21. Abrasion 7 cm x 3 cm running horizontally over olecranon process of left arm. 22. Lacerated wound 4 cm x 1.5 cm right arm over the lateral aspect of arm. 3 cm superior to wrist joint. 23. Bruise 11 cm x 10 cm right forearm. 6 cm lateral aspect of humerus 3 cm below greater tubercle of humerus. …6… 24. Abrasion 8 cm over lateral part of right forearm running obliquely lateromedially 3 cm superior to right styloid process. 25. Lacerated wound 7 cm x 4 cm over contusion 16 cm x 8 cm, 4cm to right epicondyle of humerus on right side. 26. Lacerated wound 1.5 cm x 1 cm over shaft of ulna 8 cm below olecranon process. 27. Contusion 6 cm x 11 cm below, 6 cm greater tubercle of left arm on lateral aspect. Multiple abrasion present. 28. Lacerated wound 1 cm x 4.5 cm on the dorsum of left hand 2.5 cm inferior that is distal to wrist joint. 29. Lacerated wound 2 cm x 2 cm on dorsal aspect of right forearm. 10 cm above the lower end of left radius. 30. Contusion 8 cm x 1.5 cm over the dorsum of left hand. 31. Lacerated wound 4.5 cm x 2 cm, 12 cm below left greater lubercle of humerus. 32. Avulsion of penile skin, multiple lacerations of prepuce and glans. 33. Contusion of left scrotal sac. 34. Multiple abrasion and contusion over scapula and shoulder joint of left side. (Attested photograph attached alongwith) 35. Lacerated wound 7 cm x 4 cm over anterior aspect of right thigh, 3 cm to medial epicondyle right femur. 36. Multiple abrasions over the right knee joint. 36-A. Abrasion 6 cm over the lateral malleoli of left lower limb running obliquely backwards. …7… 37. Abrasion 8 cm over the lateral aspect of left ankle joint. 38. Multiple abrasions present over shaft of both right and left tibia.” He gave the opinion that injuries No.7, 8, 9 and 11 on the scalp and injury No.33 on the scrotum were sufficient, in the ordinary course of nature, to cause death and that the death had resulted on account of those injuries. 6. Viscera were preserved and sent to the Chemical Examiner, who, vide report Ex. PW-19/J, found liquor contents in the viscera, percentage of which was 0.24 in the blood and 0.34 in the urine. 7. During the course of investigation, clothes of the respondents were taken into possession and were sent to the Chemical Examiner, for comparing the blood like stains appearing thereon with the blood of the deceased, a sample of which was taken from the dead body. Chemical Examiner, vide report Ex. PW-19/H, gave the opinion that sweater Ex. P-1, shirt Ex. P-2 and pants Ex. P-3, purporting to be of respondent Parma Nand, were stained with human blood of group ‘AB’ and that the sample blood of the deceased was also of the same group. 8. Prosecution mainly relied upon the testimony of PW-11 Gian Chand, PW-12 Jagdish Kumar and PW-13 Parkash, all of whom had made statements to the Magistrate, under Section 164 of the Code of Criminal Procedure, to prove its case. It also tried to connect …8… respondent Parma Nand with the commission of the crime, on the basis of report Ex. PW-19/H of the Chemical Examiner, per which blood stains of the same group as that of the deceased were found on the alleged clothes of respondent Parma Nand. 9. Learned trial Court did not believe the testimony of abovenamed three witnesses. Also, it concluded that the aforesaid clothes Ex. P-1, P-2 and P-3 did not stand proved to be those of respondent Parma Nand and consequently acquitted the respondents. 10. We have heard the learned Assistant Advocate General as also the learned counsel for the respondents and appraised the evidence of the prosecution. 11. PW-11 Gian Chand and PW-13 Parkash did not fully support the prosecution version. They were cross- examined by the prosecution, with the leave of the Court. They denied the involvement of the respondents in the commission of the crime. PW-12 Jagdish Kumar, however, did support the prosecution story. According to him, the deceased was beaten up with Khoncha by proclaimed offender Jawahar and with Dandas by respondents Parma Nand and Sohan Lal and done to death in the field, near a bundle of barbed wire. He did not implicate respondent Mohan Lal in the commission of the crime, though he did state that he told him not to inform anybody about the incident witnessed by him (PW-12 Jagdish Kumar). …9… 12. It appears from the testimony of PW-12 Jagdish Kumar that he himself was a suspect in the eyes of the Investigating Officer. The witness though denied a direct suggestion to this effect, but did admit that he had been at the Police Station for eight-ten days before he made statement, under Section 164 of the Code of Criminal Procedure, before the Magistrate, after keeping him at Police Station. The facts that the witness was a suspect and that the police got his statement recorded, under Section 164 of the Code of Criminal Procedure, before a Magistrate, by themselves may not be sufficient to disbelieve his testimony, but they offer a good ground for not acting upon his uncorroborated testimony to hold the respondents guilty. The witness has very categorically admitted that he was taken to the Magistrate for making statement, under Section 164 of the Code of Criminal Procedure, by the police. PW-13 Parkash has stated that he and the other witnesses were taken to the Magistrate by the SHO, PW-19 Rikhi Ram. He stated that he was called from his house for being taken to the Magistrate. Statements of PW-12 Jagdish Kumar and PW-13 Parkash give a complete lie to the statement of PW-19 Rikhi Ram, who says that the witnesses themselves had approached him for getting their statements recorded before the Magistrate, as they were being threatened by the respondents. …10… 13. Statement of PW-12 Jagdish Kumar is self contradictory. At one stage he says that Khoncha was seen by him with proclaimed offender when the deceased was still outside the Dhaba, but at another stage he says that outside the Dhaba proclaimed offender was having only a Danda and Khoncha was seen in his hands in the fields, where deceased was done to death. Again, in the examination-in-chief, he told that the deceased quarrelled with him when he told him that only Daal & Kari were available, but in the cross-examination he says that he did not quarrel with him. If the deceased had quarrelled with him and only he was present in the Dhaba, when the deceased returned very late in the Dhaba and demanded meals, it was only he who was supposed to have reacted and not the respondents, who had by that time retired to their beds. The witness says that within a day or two of the incident he left service of respondent Mohan Lal and went to his village and it was from his village that the police called and questioned him. 14. As regards report of the Chemical Examiner, Ex. PW-19/H, suffice it to say that clothes Ex. P-1 (sweater), Ex. P-2 (shirt) and Ex. P-3 (pants) have not been proved to be those of respondent Parma Nand. Nobody, not even PW-12 Jagdish Kumar, who says that these clothes were produced by respondent Parma Nand, stated that these clothes belonged to Parma Nand. Not …11… only this, nobody has stated that these clothes were worn by respondent Parma Nand, at the time, when the incident took place. Thus, this circumstance does not connect respondent Parma Nand with the commission of the crime. In view of the abovestated position, we are not inclined to interfere with the judgment of acquittal passed by the trial Court. Hence, the appeal is dismissed. ( Surjit Singh ), J May 6, 2010(sd) ( V.K. Sharma ), J