IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 751 of 1996 Decided on: May 20, 2010. State of H.P. ..Appellant. Versus Prakash Chand & Another ...Respondents Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr.Justice V.K. Sharma, Judge. Whether approved for reporting? Yes/No. For the Appellant : Mr. Rajinder Dogra, Additional Advocate General with Mr. Anil Jaswal, Deputy Advocate General. For the respondents: None. Justice R.B. Misra,J (Oral). The present Criminal Appeal has come for adjudication after the grant of leave to appeal against the impugned judgment dated 24.1.1995 passed by learned Sessions Judge, Solan, H.P. in case No. 27-S/7 of 1992 under Section 302 of IPC acquitting the alleged accused/respondents. 2. In order to adjudicate the present appeal, it is necessary to give the factual background of the case. The prosecution story is that the deceased Sohni Ram had strained relations with the two accused, on account of land dispute, and in the morning on 3.3.1992, there was a quarrel amongst the deceased and the accused. The accused were excavating the land for alleged construction of the house while the deceased Sohni Ram was preventing them from doing so, but the accused did not stop and as a result the deceased 2 visited the Pradhan of Panchayat and complained to him, who advised the deceased to contact the Vice President of the Panchayat and to come on the next day, so that he could resolve the dispute, but during the intervening night of 3.3.1992/4.3.1992m the deceased was found lying dead in a place known as “Kamoti-ka-Moar” and at the first instance, the dead body was noticed by the driver of the bus bound from Solan to Mallah at about 8.30 P.M. who accordingly informed S/Shri Balwant Singh and Yash Pal who after visiting the spot in turn informed the female member of the Panchayat, namely Smt. Sheela Devi, who sent her son-in-law Babu Ram and Yash Pal to inform the Pradhan of the Gram Panchayat, Shri Govind Ram, who in return desired Yashpal to reduce the complaint in writing who in company of these persons delivered this complaint at Police Station, Parwanu, whereas, Shri Balwant Singh after informing Smt. Sheela Devi visited the village and informed the villagers and some of them guarded the dead body during the night. The Pradhan of the Panchayat after informing the police alongwith some police officials, Yash Pal and Babu Ram arrived at the spot in the early hours on 4.3.1992. In presence of the Pradhan and other villagers, the accused Prakash Chand made Extra Judicial Confession attributing killing of deceased Shri Sohni Ram to himself and his brother Tara Chand. 3. After completion of the investigation, challan for offence under Section 302 read with Section 34 of the Indian Penal Code (for brevity described as IPC) against the two accused was produced Chief Judicial Magistrate, Solan, who committed the case for trial to the Sessions Court, Solan. 4. The prosecution in order to prove its case has examined as many as 18 witnesses. Whereas, the alleged accused in their 3 statement under Section 313 of Cr.P.C., whereas, the alleged accused have denied the allegations and had shown their innocence. 5. Smt. Sheela Devi (PW.1) W/O Shri Lachhi Ram, Panch of Gram Panchayat, Pratha. Shri Balwant Singh (PW.2). Shri Govind Ram (PW.3) President of Gram Panchayat, Pratha. Shri Jeewa Nand (PW.4) Driver in HRTC. Dr. Rajesh Kashyap (PW.5) Medical Officer. Shri Dila Ram (PW.6) Uncle of accused. Shri Shanker Lal (PW.7) Vice President of Gram Panchayat, Pratha. Sh. Nikku Ram (PW.8) resident of village Kakrol, Tehsil Kasauli. Shri Ran Singh (PW.9) the Surveyor, Housing Board, Parwanu. Shri Nant Singh (PW.10) Head Teacher, Government Primary School, Naraini. Shri Khiali Ram (PW.11) resident of village Barog. Shri Babu Ram (PW.12) Tailor at Village Naraini. Shri Sham Lal (PW.13) Constable. Shri Netar Singh (PW.14). H.C. Kanwar Singh (PW.15) Shri Bhag Singh (PW.16) Deputy Superintendent of Police, IInd Battalion. Shri Bahadur Singh (PW.17) Constable. Shri Varinder Singh Kanwar (PW.18), Deputy Superintendent of Police, Dehra. 6. Smt. Sheela Devi (PW.1) has stated that Sohni Ram deceased was real Uncle of accused persons. Both the accused persons are real brothers. On 3.3.1992, at about 1.30 p.m. S/Sh. Balwant Singh and Yash Pal came to her and informed that a man was lying dead on the curve of the road at Kamoti. Thereafter, she sent S/Sh. Babu Ram and Yash Pal to Govind Ram, President of Gram Panchayat. Whereas, Balwant Singh went to the village Barog to inform the people about the said incident. She has further stated that Sh. Babu Ram is her son-in-law. She went to the spot on 4.3.1992, where she observed that Shri Govind Ram, President of Gram Panchayat was present there. Besides, Balwant, Yashpal and 4 Lachhi Ram, husband of Smt. Sheela Devi (PW.1) were present there, when she reached on the spot. Smt. Sheela Devi (PW.1) has also observed that both the accused persons Prakash Chand and Tara Chand were also present on the spot. On enquiry by Govind Ram, President of Gram Panchayat, both the accused in presence of PW.1 have stated that they had killed Shri Sohni Ram. 7. In cross-examination, Smt. Sheela Devi (PW.1) has stated that the accused made the confessional statement to Govind Ram before the police had come there. She has further stated that accused Prakash Chand made a confessional statement. After that accused Tara Chand had told that Sohni Ram was might have been killed by Prakash Chand and not by him. Accused Tara Chand has not made any confessional statement to the fact that he had killed Sh. Sohni Ram. Accused Prakash Chand disclosed the exact words regarding his confession as follows” Mere Se Ye Kaam Ho Gaya Hai”. Smt. Sheela Devi, in her cross-examination, has stated that she told the police about such exact words uttered by accused Prakash Chand. 8. We take note from the testimony of Smt. Sheela Devi (PW.1) that in her examination-in-chief, she divulged that both the accused have confessed that they killed Sohni Ram. Whereas, in cross-examination, she resiled that the accused had made Extra Judicial Confession before Govind Ram, President Gram Panchayat. 9. Sh. Balwant Singh (PW.2) is the landlord and both the accused were his tenants. He has stated that on 3.3.1992, at about 8.30 p.m. Jeewa Nand, Driver HRTC and Hans Raj, Conductor of HRTC bus of Solan-Mallah, came to his house and told him that at Kamohti curve one person was lying dead on the road. Such place 5 was about one kilometer from his house. After reaching the spot, he saw one man lying through his head/face down on the road but due to darkness he could not identify him. Thereafter, he went to Smt. Sheela Devi’s house at Village Barog, and informed her about said incident. Smt. Sheela Devi directed him to inform Govind Ram, Pradhan of Panchayat. Then he, Yashpal and Babu Ram went to inform Shri Govind Ram, President about the incident. 10. According to the testimony of PW.2, that on the next morning at 6.30 or 7 a.m. Shri Govind Ram, President, had reached on the spot. S/Sh. Hans Raj, Bahadur Singh, Mast Ram, Devi Sara,. Lachhi Ram, Budh Ram, yashpal and Babu Ram were also present on the spot besides, Balwant Singh (PW.2). According to PW.2, on enquiry by Shri Govind Ram, President, from accused Prakash Chand, he confessed that he had done away with the life of Sohni Ram by saying that “Usne Sohni Ram Ka Kaam Tamam Kar Diya Hai”. According to Sh. Balwant Singh (PW.2), police had reached the spot after about 45 minutes or one hour of the said confession made by the alleged accused Prakash Chand to Govind Ram, President of the Panchayat. From the testimony of Balwant Singh (PW.2), it reveals that he alone went to Smt. Sheela Devi (PW.1) when he was directed to go to Govind Ram. Thereafter, an improvement in his version was made that Yashpal and Babu Ram were directed to inform Govind Ram. Smt. Sheela Devi (PW.1) when went to the spot, she could notice the presence of Balwant Singh, Yashpal, Lachhi Ram and both the accused persons as well as Govind Ram, President of Panchayat. Whereas, Hans Raj, Bahadur Singh, Mast Ram, Devi Saran, Lachhi Ram, Budh Ram, Yashpal and Babu Ram were not named and said to be present, on the spot, in the testimony of 6 Smt. Sheela Devi (PW.1). Therefore, the contradictory version has come from the testimonies of PW.1 and PW.2. 11. Nothing has divulged from the testimonies of PW.1 and PW.2 that in what manner Govind Ram enquired from the persons present on the spot and in what way the alleged accused has given his confessional statement. From the testimony of PW.2, it appears that Balwant Singh (PW.2) went to Smt. Sheela Devi about 11. p.m. in the night on 3.3.1992 and after informing her when he returned from her house, Lachhi Ram was also with him when he informed the other villagers. This aspect, however, is lacking from the testimony of Smt. Sheela Devi (PW.1). In his proved version Sh. Balwant Singh (PW.2), has stated that in addition to the persons referred to above, Nikku Ram, Dhani Ram Ram and Muni Lal Ram were also present on the spot. In cross-examination, Balwant Singh (PW.2) has stated that the police had reached the spot at about 8. a.m. 12. Sh. Govind Ram (PW.3), President Gram Panchayat, Pratha, knew the deceased Sohni Ram. He has stated that Daya Ram was father of the accused and younger brother of deceased Sohni Ram. He has stated that Sohni Ram had come to him on 3.3.1992 at 12 noon at Surajpur, and had made a complaint that Prakash Chand the alleged accused was trying to build a house forcibly on the land of Sohni Ram and he need help by preventing Prakash Chand, the alleged accused, from doing so. Thereafter, Govind Ram (PW.3) told Sohni Ram that he should bring Vice President Shanker Lal with him on the next day that is 4.3.1992 at village Narain, then he shall settle the dispute. Sohni Ram had left at about 12.30 p.m. for his village. On the intervening night of 3rd and 4th March, 1992, at about 2 or 2.30 a.m. S/Shri Yashpal and Babu Ram 7 had come to him at his house and informed him that one person was lying on the curve of Kamoti on the road in a dead condition. On inquiry, Yash Pal and Babu Ram revealed that they have been told about the said fact by the driver and conductor of Solan-Mallah service. S/Sh. Yash Pal and Babu Ram had also informed to Govind Ram (PW.3) that they had themselves seen a person lying on the road. Thereafter, they were directed by Govind Ram (PW.3) to give a written complaint, so that information could be given to the police. Accordingly, a written complaint was given by Yash Pal and the same was handed over to the police at about 3.30 a.m. on 4.3.1992. 13. As per testimony of Govind Ram (PW.3) Balwant Singh, Shyam Lal, Mast Ram, Prakash Chand and Tara Chand the alleged accused were present on the spot when he reached the spot in a Taxi alongwith Yashpal and Babu Ram. According to him, Tara Chand, the alleged accused was sent to call Shanker Lal, Vice President. Govind Ram (PW.3) reached the spot at about 5 a.m. in the morning of 4.3.1992. On inquiry by Govind Ram (PW.3), Prakash Chand the alleged accused had confessed that he has done away with the life of Sohni Ram and the police had reached the spot after 45 minutes or one hour of the aforesaid confessional statement of Prakash Chand the alleged accused. Thereafter, the police reached the spot and had taken in possession the Pasti (wooden sticks meant to be used for light at night) and the blood stained earth from the spot. 14. As per testimony of Govind Ram (PW.3), on inquiry, Prakash Chand the alleged accused has stated that Danda was of Kangu and that he had thrown the same in the bushes near the place of occurrence. On 4.3.1992, Danda was recovered in presence of Prakash Chand the alleged accused. In cross-examination, Govind 8 Ram (PW.3) has stated that Tara Chand the alleged accused had not disclosed anything in presence of the police. 15. We notice from the testimony of PW.3 that he did not state about the presence of Hans Raj, Bahadur Singh, Mast Ram, Devi Saran, Lachhi Ram, Budh Ram, Yashpal and Babu Ram, who were said to have been present on the spot. As per testimony of Balwant Singh (PW.2) Govind Ram (PW.3) reached the spot at about 6.30 a.m. or 7 a.m. Whereas, as per testimony of Govind Ram (PW.3) he had reached the spot at about 5.15 a.m. As such, we notice the contradiction about the arrival of Govind Ram (PW.3) as per version of Balwant Singh (PW.2) and Govind Ram (PW.3) himself. As per testimony of Govind Ram (PW.3) the alleged accused Prakash Chand has stated that “Usne Sohni Ram Ka Kaam Tamam Kar Dia Hai”, this Extra Judicial Confession is self contradictory as stated by Smt. Sheela Devi (PW.1), who has stated that Prakash Chand the alleged accused in her presence has stated to Govind Ram (PW.3) that “Mere Se Ye Kaam Ho Gaya Hai” and confessional statement as revealed by Balwant Singh (PW.2) indicates that the alleged accused has stated that “Maine Sohni Ram Ko Maar Dia Hai”. As such we notice the apparent contradiction about the Extra Judicial Confessional Statement from the testimonies of PW.1, PW.2 and PW.3. 16. Shri Jeewa Nand (PW.4) Driver of Bus No. HP.A-6389 and Shri Hans Ram was the conductor of the said bus. On 3.3.1992, they left Solan at about 5.p.m. and reached Kamoti curve at about 8.30 p.m. After reaching Kamoti, they observed that a man lying on the road with his face downward the road. They suspected that he might have been killed by someone and they stopped the bus. There 9 was only one passenger in the bus, who was to go to Mallah. After they stopped the bus, he went to Mallah on foot. Thereafter, an information was given by them to Balwant Singh (PW.2). House of Balwant Singh was about one kilometer from the place of incident and accordingly they went to inform President of Gram Panchayat. 17. From the testimony of Jeewa Nand (PW.4) a serious contradiction has come that incident was informed to Balwant Singh and Balwant Singh, whose residence was about one kilometer away from the spot of occurrence, it was Balwant Singh, who informed the President Gram Panchayat. Whereas, as per testimony of Balwant Singh (PW.2), he has gone to inform Smt. Sheela Devi (PW.1) at about 1.30 p.m. on 3.3.1992. As per testimony of Balwant Singh (PW.2) the persons were Yashpal and Babu Ram, who informed Govind Ram (PW.3) President of Gram Panchayat about the occurrence and not Balwant Singh. 18. Dr. Rajesh Kashyap (PW.5) has noted the injuries on the body of deceased and correlated the injuries by a Danda recovered from there and opined that fractures which led to excessive trauma and haemorrhage leading to shock and the cause of death. 19. Shri Dila Ram (PW.6) Uncle of the accused (not real) was stated that on 3.3.1992, he had gone to Solan and when he came back he met Tara Chand, who is real brother of accused Prakash Chand, both purchased the liquor which was consumed by accused Prakash Chand. On the next day he (Dila Ram PW.6) heard that Prakash Chand killed Sohni Ram. 20. Shri Shanker Lal (PW.7) Vice President of Gram Panchayat, Pratha, has stated that on 2.3.1992, Deep Ram of Village Kakroli came to him and told that he has a dispute with the alleged 10 accused Prakash Chand regarding land and Shanker Lal was expected to accompany him to village Kamrol. Accordingly, Shanker Lal (PW.7) accompanied Deep Ram to village Kakrol and observed the disputed land, where Deep Ram told him that some of his land has been excavated by the accused. Deep Ram is cousin of deceased Sohni Ram. As per testimony of Shanker Lal (PW.7), on 4.3.1992, he came to know at about 10 a.m. that police and the President of the Panchayat had gone towards Kamothi Moar, where somebody is stated to have died. When he reached the spot of occurrence, he observed that Sohni Ram lying dead there and noticed that the police was present there. He has further noticed that S/Sh. Govind Ram, President Panchayat, Balwant Singh, Khiali Ram, Yash Pal, Lachhi Ram, Nikku Ram, Smt. Sheela Devi and Dhani Ram were also present there. 21. It is apparent that Shanker Lal (PW.7) has not stated in his testimony about the presence of Hans Raj, Bhahadur Singh, Mast Ram, Devi Saran, Budh Ram, Yash Pal and Babu Ram, on the spot, as has been divulged in the testimony of Balwant Singh (PW.2). According to Shankar Lal (PW.7) Danda was recovered from the bushes in his presence . According to Shankar Lal (PW.7), Prakash Chand the alleged accused identified the Danda and the police took the same into possession and the same bears his signature and that of Shri Lachhi Ram and thumb impression of Prakash Chand the alleged accused. It is very strange that when Shankar Lal was specifically called by Govind Ram (PW.3) to the spot and he reached the spot after some time, but he did not make any statement regarding the Extra Judicial Confession having been made by Prakash Chand the alleged accused to Govind Ram (PW.3). An 11 apparent contradiction is being revealed about the presence of so many persons, who have been referred to in the testimony of Balwant Singh (PW.2) and absent in the testimonies of PW.1, PW.3 and PW.7. 22. Shri Nikku Ram (PW.8) had stated that deceased Sohni Ram was real Uncle of accused persons. While supporting the prosecution version, Nikku Ram has stated that he came to know about the said incident at about 7.30. a.m. on 4.3.1992 that Sohni Ram has been killed by someone. When he came to the spot, he noticed that Sohni Ram was in lying condition. Sh. Nikku Ram (PW.8) has also stated that in his presence Prakash Chand the alleged accused had made a confessional statement to Govind Ram (PW.3) that he killed Sohni Ram. According to him, he does not remember, who has informed him about this incident. 23. It is also to be noted that PW.8 has reached the spot at about 7.30. a.m., at that time, all the persons, as has been named referred in the testimonies of PW.1, PW.2, PW.3 and PW.7, who were present on the spot, said to be narrated by Nikku Ram (PW.8) also, which further contradicts the version of the aforesaid witnesses. According to Nikku Ram (PW.8), Prakash Chand the alleged accused has made a confessional statement to Govind Ram (PW.3) that “Usne Sohni Ram Ko Mar Dala”, such confessional statement is further contradicted to the Extra Judicial Confession divulged by PW.1, PW.2 and PW.3 and the version of such confessional statement is quite contradictory and different. 24. Sh. Ran Singh (PW.9) is stated to be a Surveyor of Housing Board and has only made a site plan of that place Ex. PW.9/A and has attested the same. 12 25. Sh. Nant Singh (PW.10) is head Teacher, Government Primary School, Naraini. According to him, the date of birth of Prakash Chand the alleged accused is 20.4.1975 and has testified the certificate issued regarding his birth. 26. Sh. Khiali Ram (PW.11) has stated that on 4.3.1992, at about 6.30 a.m., when he was in his village Barog, Prakash Chand the alleged accused came to him to apprise that a dead body is lying at Kamoti Moar and Govind Ram (PW.3) President of Gram Panchayat had asked him to come that place. Accordingly, he accompanied the accused to the spot, where he noticed that Sohni Ram was lying dead. Khiali Ram (PW.11) has also noticed the presence of Govind Ram, Balwant Singh, Yash Pal, Smt. Sheela Devi, on the spot of occurrence. On inquiry, from Prakash Chand, the alleged accused, he had revealed that it was Prakash Chand, who killed Sohni Ram. According to Sh. Khiali Ram (PW.11) the police had reached there after about 1 ½ hour of the Extra Judicial Confession made by Prakash Chand the alleged accused, before Govind Ram (PW.2) that “Humare Se Ye Ho Gaya Hai Hame Bacho”. 27. Apparently, we notice that Khiali Ram (PW.11) reached the spot at the instance of Prakash Chand, the alleged accused. But he did not notice the presence of the persons present on the spot of occurrence, as has been divulged by PW.1, PW.3 and PW.7 and the version of Extra Judicial Confession is quite contrary and different as has been indicated by PW.1, PW.2 and PW.3. 28. Sh. Babu Ram (PW.12) is stated to be a Tailor at village Naraini, has stated that on 3.3.1992, when he was sleeping in the house of Balwant Singh, Yash Pal came there and told that one man was lying dead near Kamoti Moar. It was 11 p.m. when Yash Pal told 13 him about the said person lying dead. They had also disclosed that they had been told by the bus driver and conductor about the said person and he has not seen himself. According to Babu Ram, his mother-in-law asked him and Yash Pal to inform the President of the Panchayat Govind Ram and also the police while Sh. Balwant Singh was asked to inform the villagers and to guard the said dead body. Sh. Babu Ram (PW.12) has also said to be come on the spot, who noticed the presence of Shri Devi Saran, Mast Ram, Shyam Lal, Lachhi Ram and Balwant Singh (PW.2) has also stated that Prakash Chand, the alleged accused, made a statement to Govind Ram (PW.3) that he had committed murder of Sohni Ram because he was having a dispute with the deceased. 29. From the testimony of PW.12, also an apparent contradiction has been noticed, that he has been informed by Yash Pal and he was informed about the said incidence of murder of Sohni Ram, through the driver and conductor, and an apparent contradiction is being noticed that on reaching the spot, he has only noticed the presence of Shyam Lal, Lachhi Ram and none else, which further contradicts the version, as has been divulged by PW.1, PW.2 and PW.3. 30. Nothing substantial can be derived from the testimonies of Sh. Shyam Lal, Constable(PW.13) and Shri Neter Singh (PW.14). 31. Shri Kanwar Singh ( PW.15) has stated that he was Head Constable in Police Station, Parwanu since, 1990. On 4.3.1992, Shri Varinder Singh, S.H.O. Police Station Parwanu, directed him to investigate the case. He visited the spot at about 8.15 a.m., when he reached the spot, he noticed the presence of many persons including Govind Ram, Babu Ram and Yash Pal. Sh. Kanwar Singh (PW.15) 14 has taken into possession a Danda, which was lying under the dead body of Sohni Ram. He also taken into possession blood stained earth from the spot and the same was sealed by him with seal ‘K’ and the seal after use was handed over to Govind Ram. The recovery Memo was got signed by Govind Ram and Shankar Lal. 32. From the testimony of PW.15, it is revealed that he reached the spot at about 8.15 a.m. on 4.3.1992. Whereas, as per testimonies of other prosecution witnesses, particularly PW.11 that the police arrived at the spot of occurrence at about 9.30 a.m. As per testimony of PW.11 that the confessional statement having been given to Govind Ram (PW.3), we emerge to note that such important Extra Judicial Confessional statement was said to be apprised to the police officials. 33. Sh. Bhag Singh