IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 368 of 1998 Date of Decision: 22.7.2010 State of H.P. …Appellant. Versus. Murari Lal and others …Respondents. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for Reporting? For the Appellant: Mr. Rajesh Mandhotra, Deputy Advocate General. For the Respondents No. 1 to 5: Mr. M.C.Sharma, Advocate. Per Deepak Gupta, J.(Oral). 1. This appeal by the State is directed against the judgement dated 31.1.1998 delivered by the learned Addl. Sessions Judge, Mandi in Sessions Trial No. 7 of 1996 whereby he acquitted the accused of having committed offences punishable under Sections 147, 149 and 302 I.P.C. 2. The prosecution case is that on the night intervening 8th October, 1995 and 9th October, 1995 a fair was taking place in village Khun of district Kullu. The deceased Thakur Singh S/o Chura Ram, who is a resident of village Chittar had gone to attend the fair. According to the 2 prosecution all the seven accused in furtherance of their common intention formed an unlawful assembly and murdered the deceased Thakur Singh. The accused were made to face trial and the learned trial Court acquitted the accused. Hence the present appeal. 3. PW-12 Uttam Singh is the real brother of the deceased. He is also the first informant. In his statement made to the police under Section 154 Cr.P.C. he had stated that he had gone to attend the Kullu Dussehra Mela on 5th October, 1995 and stayed at Kullu for two nights. On 8th October he was returning to the village and then decided to attend the fair at Khun village. He reached there at about 10 p.m when some drama was being staged at the fair. The drama came to an end at about 12.00 mid night. Uttam Singh wandered around in the fair ground and came across his real brother Thakur Singh (deceased). They both moved around in the fair and in the meantime some boys out of whom one was recognized by the witness to be Yashwant resident of Khulvahan asked the witness and his brother for their identification. They informed these persons that they belong to village Chittar and had come to attend the fair. Immediately, Yashwant instigated the others and told them that these people from village Chittar should be 3 beaten and done to death. The boys attacked Thakur Singh with knives and fist blows. They tried to catch hold of Uttam Singh but he managed to run away. During this melee he heard some of the boys addressing one of the assailants as “Hippy”. 4. The witness on account of fear ran away and reached village Majao where he slept for the night. He got up at 6 a.m and was going to his own village when he met the person known as Hippy, who asked Uttam Singh whether he wanted to be beaten up. The witness did not respond and he was allowed to go. He reached village Matla where another Thakur Singh, resident of village Matla, who had set up a tea stall at the fair ground, told him that his brother Thakur Singh had been killed on the previous night. Then this witness went home to inform his parents and then returned to the police station to lodge the report. On the way he came to know that the police had already proceeded to the scene of occurrence and therefore he also went there. 5. In the first statement given to the police the witness who is the real brother of the deceased only named one person known to him, namely, Yashwant. He identified another person by name i.e. Hippy since the persons who were attacking his brother had addressed one of the 4 persons as Hippy. He clearly stated that he did not know any of the other persons. He also did not name any other witnesses to the incident. While appearing in Court this witness gave a totally different version. According to him he not only met his brother but he also met Thakur Singh, Khem Chand, Amir Singh, Govindu, etc. and he further stated that accused party consisted of Murari Lal, Yashwant, Hippy, Chaman, Som Dutt, Bhume Ram, Chobe Ram, Kiran, Jetu, Pawan, Gouri etc. Whereas in his statement under Section 154 Cr.P.C. Ext.PW-12/A he had stated that it was Yashwant who asked them to give their introduction, in Court he stated that it was Hippy who did so. Whereas in his earlier statement he had stated that Yashwant instigated the others, in Court he stated that it was Pawan Kumar who instigated the other accused. Whereas in his original statement he had not stated that he suffered any injuries, in Court he stated that he and his brother were both beaten by the accused. Further, according to him, Murari Lal gave a blow of iron grip to the deceased Thakur Singh and Chaman burst a bottle on the head of Thakur Singh. This was not stated in the original statement under Section 154 Cr.P.C. He further stated that he and his brother were beaten twice on the night intervening 8.10.1995 and 9.10.1995 5 whereas in the original statement there was mention of only one fight. 6. In the first statement this witness had stated that he ran away since he was scared off and took shelter in village Majao but in Court he stated that he was beaten and dumped in a field and regained consciousness after about an hour and then went to meet his brother who had died. Realising that there were a lot of contradictions in these two statements he tried to explain them by stating that he was in a state of shock when he reported the matter to the police. The statement under Section 154 Cr.P.C. has been recorded by the police at about 3.30 p.m i.e. almost 15 hours after the incident. The informant could not have been at shock at that stage. Therefore, his explanation that he was in a state of shock cannot be accepted. 7. It would be pertinent to mention that initially the case was lodged only against five persons and Pawan and Kiran were added accused lateron after statements of as many as of nine witnesses had been recorded in Court. Thus it is apparent that during investigation nothing was found against Pawan Kumar and Kiran and it was only on account of what the witnesses stated in trial that they were impleaded as accused. Both these accused died 6 during the pendency of the appeal and the appeal against them stands abated. However, it is apparent that the witnesses made improvements while appearing in the Court and it was because of these improvements that these accused were impleaded as parties. 8. In the first information report PW-12 Uttam Singh had not named any person who witnessed the occurrence. In Court two eye witnesses have been produced. One of them is Ishwar Dass PW-9. His residence is only at a distance of two kilometers from the residence of the deceased. He gave an entirely different version. According to him Murari Lal and the other accused were fighting with Thakur Dass and Uttam, etc. Murari Lal and others were saying that beatings be given to the people belong to village Chittar. However, the matter was settled. His version is that this incident took place when the drama was going on. According to him when the fight erupted the drama was stopped and after the matter was settled the drama was restarted. He further stated that at about 12.30 mid-night he went to urinate near the school and heard some persons were shouting “Maro- Maro”. He saw the accused and the dead body of Thakur Singh was lying in the field. He then ran to his village. As pointed out above, this witness was not named in the 7 F.I.R. This witness stated in cross-examination that he had attended the cremation of the deceased and had condoled the death of the deceased with his family members. According to him he informed all the family members including the father and the brother of the deceased that he had witnessed the occurrence. However, he was not examined by the police nor named by any of the witnesses till about six days after the occurrence. This casts a doubt on his testimony and in fact on his presence at the spot itself. 9. PW-17 Jeet Ram the other eye witness gives a totally different version. According to him when he was at the fair the accused persons had attacked the boys of Chittar area. He also stated that first quarrel took place at about 12 mid-night when the drama was still being staged and second quarrel took place at about 1 a.m. According to him he saw that accused Pawan Kumar had caught hold of Thakur Singh from the throat and neck and accused Murari Lal administered blows with grip on the head of Thakur Singh and the other accused persons were beating the deceased and Uttam Singh. Uttam Singh managed to escape. Thereafter, the accused persons had beaten Thakur Singh and threatened the witness. In cross-examination this witness admitted that the 8 deceased used to call him as maternal uncle though there was no relationship between him and the deceased. In cross-examination he also stated that he could only identify accused Pawan and Murari Lal and none of the other accused. If this witness had actually been present at the spot there would have been no problem to identify other accused also. 10. According to the Investigating Officer PW-14 information regarding dead body having been found was received telephonically and was recorded in the daily diary vide report Ext.PW-14/A. As per this report this information was received at 8.15 in the morning. Thereafter he went to the spot. According to him he reached village Khun at about 4.00 p.m. There is no explanation as to why the F.I.R was lodged at 6.15 p.m if he had received the report at 8.15 a.m and immediately gone to the spot. According to Uttam Chand he had walked two hours, therefore, the police should have reached the spot latest within three hours. Even as per the police the statement of Uttam Chand was recorded at 3 p.m and F.I.R lodged at 6.15 p.m which shows that the distance could have covered within three hours. Therefore, the police had failed to explain why if it reached the spot at 12 noon and dead body had been 9 found why the F.I.R was not lodged immediately and it was lodged at 6.15 p.m. 11. There are many improvements in the statements of the witnesses and contradictions in their statements. These contradictions go to the very root of the matter. Uttam Singh initially did not name anybody except Yashwant, who is not even an accused. The others were not named by him. Admittedly no identification parade was conducted. The F.I.R was lodged 16 hours after the incident. It cannot be believed that one brother would see the other brother being beaten up and then go to sleep as alleged in the first information report. If the version put in Court is to be believed then by about 2.00 a.m Uttam Singh knew that his brother had been killed. Why did he remain quite for 15 to 16 hours thereafter? He was a grown up person and could have straightway reported the matter to the police. If other witnesses had been present they would also reported the matter to the police. No doubt a young man has been killed but the prosecution has failed to show who are the culprits. The prosecution has also miserably failed to prove how the quarrel started. In view of the various contradictions pointed out above, we find no error in the judgement of the learned trial Court. The appeal is, therefore, 10 dismissed. The bail bonds furnished by the accused are ordered to be discharged. ( Deepak Gupta ) Judge. 22nd July, 2010 ( Sanjay Karol ) ™ Judge.