1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 213 of 2003 Date of decision: 02. 01. 2008 ____________________________________________________________ Santosh Kumar and others Appellants. -vs- State of H.P. Respondent. __________________________________________________________________ Coram Hon’ble Mr. Justice Surjit Singh, J. Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? For the appellants : Mr. Rakesh Jaswal, Advocate. For the respondent : Mr. Som Dutt Vasudeva, Additional Advocate General with Mr. D.S. Nainta, Deputy Advocate General. _________________________________________________________ Surjit Singh, J. (oral) Appellants are aggrieved by the judgment of Sessions Court, whereby they have been convicted of an offence under Section 302 read with Section 34, Indian Penal Code, and sentenced to under-go life imprisonment and to pay a fine of Rs. 5000/- each, in default of payment of fine to under-go rigorous imprisonment for a further period of six months each and out of total amount of fine, if realized, an amount of Rs. 15,000/- has been ordered to be paid by way of compensation to the widow of the deceased. We may first notice the prosecution version. Deceased Parkash Chand was employed as a Pharmacist in Veterinary Hospital Durag Kalan in Palampur Tehsil. He was resident of Tikka Hanglow, Tehsil Palampur. He used to commute daily between his native place and the place of work. He Whether reporters of the Local papers are allowed to see the judgment? 2 would go on foot up to a place called Nagri and from there, board a Bus for his place of work. Similarly, on way back home in the evening, he would travel up to Nagri by Bus and from there walk back to his house. As usual, he left his house for the dispensary on 31st July, 2000. He did not return home in the evening. His wife Shakuntla Devi (PW5) thought that he might have stayed back in connection with some urgent official work. Next morning, i.e, on 1.8.2000, her husband’s brother Nek Raj went to her house and informed her that her husband’s dead body was lying at a place called “Jhamordian Di Bowri”. About two years prior to the occurrence, appellants Suraj Kumar and Surinder Kumar alias Goka, both brothers, had an altercation with the father of the deceased and the deceased had advised his father to lodge a report with the Police. The aforesaid two appellants threatened the deceased that in case report was lodged, relations would further worsen and they also threatened that his dead body would be found between Nagri and Paror. Parma Ram, father of appellant Santosh Kumar, also had a grouse against the deceased because he had the feeling that the deceased was responsible for throwing of debris by a bull-dozer into his land at the time of construction of a link road. One of the appellants had the suspicion that a case against him for felling a chil tree had been got registered by the deceased. All the four appellants allegedly hatched a conspiracy to kill the deceased. Such conspiracy was hatched on 31.7.2000 itself and that very day, the plan was executed. In fact, the appellants wanted Baldev Kumar PW28 (the approver) also to become a party to the killing of the deceased. Initially he agreed but then backed out and agreed to only stand as a guard when the crime was being perpetrated by the appellants. Police arrested the appellants, Baldev Kumar (PW28) and one Mohinder Singh, after the case was registered on the basis of report lodged by Shakuntla Devi (PW5). During the course of investigation, no 3 incriminating evidence was found against the said Mohinder Singh and, therefore, he was not challaned as an accused. Baldev Kumar (PW28) made an application for being tendered pardon. That application was allowed by the Chief Judicial Magistrate. Baldev Kumar made a statement, under Section 306 read with Section 164 of the Code of Criminal Procedure. According to this statement, when Baldev Kumar reached Nagri by a Bus at 6.00 P.M and went to the shop of appellant Santosh alias Seeta, Surinder alias Goka was already there. Surinder Kumar had a dagger with him. He put that dagger in his pocket and said that they (Santosh Kumar and Surinder) intended to kill Parkash Chand (the deceased) and asked him (Baldev Kumar PW28) to accompany them to which he consented. They went to the Dhaba of one Pritam where they purchased meat. In the meanwhile, they saw Parkash Chand deceased crossing the road. The above named two appellants and the approver then left Pritam’s Dhaba and proceeded towards their village by road. After covering a very short distance, they noticed Parkash Chand coming on a Scooter with Patwari Sarup Chand. Scooter overtook them. The three continued to walk. When they reached near the shop of Ramesh alias Kittu, they saw Parkash Chand and Sarup Chand Patwari eating something. The above named two appellants and Baldev Kumar (PW28) then stopped near the shop of Devinder Tailor and talked to him for two- three minutes. Then they went to the court yard of Inder Nag Temple where appellants Suraj Kumar and Tilak Raj were already present. Suraj Kumar was having a Darat. Surinder took that Draft from Suraj and declared that they would be using the Darat, to kill Parkash Chand one after the other. Tilak Raj on being asked by Santosh, told that he was having a knife. Santosh then revealed that Parkash will be killed near Jamordian Di Bowri. Baldev Kumar (PW28) backed out and refused to be a party to the killing. Four appellants then declared that they themselves would execute the plan. 4 After some time, Parkash Chand deceased was seen coming along the road. He went to the shop of Surinder Kumar alias Goka and purchased a few eggs. Around 8.15 or 8.30 P.M, Parkash Chand left the said shop and started in the direction of his village along the main road. The four appellants and Baldev Kumar (PW28) followed a short cut. At some distance, Baldev Singh hid himself to keep watch on the passers-by while the appellants proceeded towards the Bowri. After half an hour, Baldev Raj (PW28) also went towards Bowri. On hearing the sound of his foot steps, appellant Santosh asked appellant Suraj Kumar to run away. All the appellants then ran away. On reaching Bouri Baldev saw the deceased lying dead. It is also the case of the prosecution that before making the aforesaid statement to the Magistrate, on being granted pardon, Baldev Kumar (PW28) had disclosed to certain witnesses, including Munshi Ram (PW8) and Dev Raj (PW11) that the four appellants went towards the Bowri ahead of the deceased, even before deceased left the shop of Surinder Kumar alias Goka and that it was only he who followed him and as soon as the deceased reached Jhamodian Di Bowri, all the four appellants attacked and killed him. Police inspected the spot. Inquest was conducted. Dead body was sent for post mortem examination. The following ante mortem injuries were found on the dead body: “1. There were incised wound on the right side of the neck below the mandible, running obliquely from mastered to thyroid. It was 5” x 2½ “ size, cutting the underlying soft tissues, muscles, vessels and 4th cervical vertebrae. 5 2. There was another incised wound3” x ½ “ in size below the first one which is also cutting the tissue muscles and surrounding tissues were ecchymosed with blood. 3. There was incised wound in the right axillary extending up to the upper portion of the chest and it was 5” x 2 ½ “ in size underlying tissues muscles, were cut and also cutting the third, 4th and 7th ribs on right side. This wound was communicating in the thoracic cavity on the right side and also cutting the middle portion of lung. 4.There was two incised wound one on the medical aspect and another on post aspect of right arm cutting the tissue, muscle and vessels edges were perfused with blood 5. There was incised wound on the right side of the chest on anterior axillary line. This was 3” x 1 ½ “ in size communicating with the thoracic cavity on the right side and cutting the lower portion of the lung. 6.There was incised wound 2” x 1” in size right to coigastrium. It was muscle deep. 7.There was incised wound on dorsal aspect of left hand. It was 3x1 “ in size. All the four accused made disclosure statements leading to the recovery of various articles. Appellant Santosh Kumar made a disclosure statement leading to discovery of Khukhri Exhibit P1 and clothes from the upper storey of his cow shed. Appellant Surinder Kumar made a disclosure statement leading to recovery of Darat Exhibit P2 and his clothes including pant Exhibit P8-a on which a stain of human blood of B+ group was found by the Chemical Examiner. Tilak Raj made a disclosure 6 statement leading to the recovery of knife Exhibit P3 and his clothes. Suraj Kumar made a disclosure statement leading to the discovery of his clothes. It may be noticed that no blood stains were found on Darat Exhibit P2, knife Exhibit P3 and the clothes of the appellants, except pant Exhibit P8-a . Human blood stain was found on Kukhari Ex. P1 also but its group could not be determined. During the course of trial, prosecution examined a number of witnesses including PW28 Baldev Kumar, the approver, PW8 Munshi Ram and PW11 Dev Raj to whom Baldev Kumar (PW28) allegedly made extra judicial confession before turning approver, Munshi Ram (PW8), Rikhi Ram (PW7), Mast Ram (PW9) and Shruti Parkash (PW23) to whom appellant Suraj Kumar also allegedly made extra judicial confession and Keshav Ram (PW6) to whom Tilak Raj appellant made an extra judicial confession. Prosecution also examined the witnesses in whose presence the alleged disclosure statements were made and recoveries pursuant to such statements were effected. Wife of the deceased was also examined to prove the motive. Prosecution also examined Pritam Singh (PW17) at whose Dhaba Baldev Kumar (PW28) and appellants Santosh Kumar and Surinder Kumar allegedly purchased meat, Devinder Kumar Tailor (PW19) at whose shop the three stopped for a while and Surinder Kumar alias Bhota (PW18) at whose shop the deceased allegedly purchased eggs before proceeding to his village. We have heard the learned counsel for the appellants as also the learned Additional Advocate General and have gone through the record. Before appreciating the evidence, we may state that legal position as to the evidentiary value of the evidence of an approver is very well settled. It is not safe to base the conviction of an accused solely on 7 uncorroborated testimony of an approver. In the present case, the narration of events given by the approver in the trial Court as PW28 as also before the Magistrate vide statement Exhibit PW28/A to the Additional Chief Judicial Magistrate at the time of the tender of pardon, is different from the one given to Munshi Ram (PW8) and Dev Raj (PW11) to whom he allegedly made extra judicial confession before seeking tender of pardon. This, in our considered view, by itself, renders the testimony of the approver highly doubtful. In the Court as also before the Magistrate, vide statement Exhibit PW28/A, the approver testified that all the four appellants and he waited for the deceased to leave the shop of Bhota PW18 and that when the deceased came out of the said shop and proceeded towards his house along the road, he and the four appellants left the court yard of the Temple following a short cut path and on the way, he hid himself in a forest to keep watch on the passers-by while the four appellants went to Jamodhian Di Bowri, the site fixed for killing the deceased and that after half an hour, when he came out of his hiding & proceeded towards the said Bouri, he heard Santosh appellant asking Suraj appellant to run away as there was sound of foot steps and then all the four appellants ran away and on reaching the Bowri, he saw the deceased lying dead. However, to Munshi Ram (PW8) and Dev Raj (PW11) he (PW28) gave a different story per their testimony in the Court. According to their testimonies, Baldev Kumar (PW28) told that the four appellants left the Temple ahead of the deceased towards the site where conspiracy was to be executed and he himself stayed back. He followed the deceased after he left the shop of Bhota and as soon as the deceased reached Jhamodian Di Bowri, all the four appellants attacked and killed him. This contradiction in the statement (extra judicial confession) made by Baldev Kumar (PW28) to Munshi Ram (PW8) and Dev Raj (PW11) and the version given by Baldev Kumar (PW28) in the Court as also to the 8 Magistrate vide statement Exhibit PW28/A, renders the evidence of approver Baldev Kumar (PW28) highly doubtful, rather un-believable. Prosecution very much relies upon the version given by PW28 in the trial Court and to the Magistrate, vide statement Exhibit PW28/A as also the aforesaid contradictory version given by him to Munshi Ram (PW8) and Dev Raj (PW11) because the prosecution itself got this version testified from these later named two witnesses and then did not seek to challenge the said version by cross-examining them with the leave of the Court. Learned Additional Advocate General has submitted that corroboration to the testimony of the approver is forthcoming from the testimony of Pritam Chand (PW17), Devinder Kumar (PW19) and Surinder Kumar alias Bhota (PW18). Pritam Chand (PW17) has testified that appellant Santosh and three-four persons visited his shop and purchased meat at his shop. He does not say that if Baldev Kumar (PW28) was accompanying appellant Santosh. Also he does not name any other appellant to be in the company of appellant Santosh. Devinder Kumar (PW19) no doubt says that appellants Santosh Kumar and Surinder Kumar as also approver Baldev Kumar (PW28) visited his shop together on the evening of 31-7-2000 but his testimony in no way corroborates the relevant and material aspects of the testimony of the approver. Surinder Kumar (PW18) had testified only with regard to the visit of the deceased to his shop. He does not say if he had seen any of the appellants or the approver around his shop that evening. In any case, the presence of the approver in the company of the appellants near the site of occurrence in the evening of 31.7.2000 does not prove the alleged conspiracy nor does this fact prove the execution of the alleged conspiracy by the four appellants. 9 As regards the recovery of weapons of offence, Khukhri Exhibit P1, Darat Exhibit P2 and knife Exhibit P3, allegedly at the instance of appellants Santosh Kumar, Surinder Kumar and Tilak Raj, respectively, not only that the evidence regarding the making of disclosure statements by them and the recovery of the aforesaid weapons pursuant to such statements is doubtful, but also the aforesaid weapons do not stand connected with the commission of the crime. Stains of human blood were found only on Khukhri Exhibit P1, per report Exhibit-PA of the Chemical Examiner, but the blood group could not be detected. Therefore, it cannot be said that the stains of human blood found on the Khukhri were those of the deceased’s blood. Also it appears from the evidence on record that even on this Khukhri Exhibit P1, blood stains could have been planted because Rikhi Ram (PW7) has very categorically stated that when Khukhri was recovered, it did not bear any stains of blood. Khukhri Exhibit P1 was recovered from the cow shed (upper portion) of appellant Santosh Kumar. It has been admitted by Rikhi Ram (PW7) as also Dharam Chand Investigating Officer (PW35) that the cow shed remains open. Testimony of Rikhi Ram (PW7) and Dharam Chand (PW35) with regard to the recovery of Khukhri Exhibit P1 is also contradictory. Statement of Dharam Chand (PW35) gives the impression that he himself went to the upper storey of the cow shed to effect recovery of Khukhri but Rikhi Ram (PW7) says that it was he and appellant Santosh who went there and brought out the Khukhri. According to Dharam Chand (PW35), Khukhri was recovered from the heap of chaff but Rikhi Ram (PW7) does not say so. Again, it has come in the evidence that Santosh Kumar was arrested on 1.8.2000 and remained in police custody up to 4.8.2000 and it was only on 4.8.2000, i.e. the last day of his detention in police custody, that the alleged disclosure statement was made. He was taken to his house on that day and it was there that he is alleged to have 10 made the disclosure statement. The fact that the appellant was taken to his house, that is to say the place of recovery of Khukhri even before he made the alleged disclosure statement, creates suspicion that Khukhri might have been planted. As regards the recovery of Darat Exhibit P2 allegedly at the instance of appellant Surinder, the prosecution’s own evidence shows that this Darat was produced not by Surinder Kumar but by appellant Suraj. Reference in this behalf may be made to the testimony of Mast Ram (PW9) who very categorically stated that Darat was got recovered by Mast Ram (PW9). It is true that stain of human blood of B+ group was found on the pant of one of the appellants, namely, Surinder Kumar per report Exhibit PA of the Chemical Examiner but it has come in the evidence, per testimony of Dr. Surjeet Raina (PW3) that blood group of Surinder Kumar appellant himself is also B+. It is also in the evidence of the prosecution itself that Surinder Kumar appellant had been having a bleeding injury on the middle finger of one of his hands during those days. Reference in this behalf may be made to the statement of Dr. Nirdosh Gupta (PW2). For the foregoing reasons, we are of the considered view that the evidence on record does not prove the charge of murder in furtherance of the common intention, against any of the appellants, beyond reasonable doubt. Consequently, the appeal is accepted. Judgment of the trial Court is set aside. Appellants, being in custody, are ordered to be set at liberty forthwith, in case their detention is not required in any other matter. (Surjit Singh) Judge. (Surinder Singh) January 2, 2008(bm) Judge. 11 12