IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 201 of 1994. Date of decision: 25-04-2008. ____________________________________________________________ State of H.P. Appellant. -versus- Manoj Kumar and others. Respondents. Coram Hon’ble Mr. Justice Surjit Singh, J. Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? No. For the appellant : Mr. P.K. Sharma, Addl. Advocate General with Mr. P.M. Negi, Deputy Advocate General. For the respondents: : Mr. N.S. Chandel, Advocate. _________________________________________________________ Per Surjit Singh, J. State has appealed against the Sessions Court’s judgment dated 4-10-1993 whereby the respondents, who were charged with and tried for offences under Sections 147, 148, 323 and 302 read with Section 149, I.P.C. stand acquitted. Prosecution story may be summed up thus: PW12 Vinod Kumar was a student of Government College, Dehri. He was elected as President of the Students Union on 3-9-1992. Election was contested against him by one Surjit Singh of village Raja-ka-Talab. Students of Jawali, a small town-ship, were the supporters of said Surjit Singh. On account of election of Vinod Kumar (PW12) as the President of the Students Union, residents of Jawali had a grouse against him. On 19-9-1992, PW12 Vinod Kumar went to Jawali to buy certain merchandise. He was assaulted by Whether reporters of the Local papers are allowed to see the judgment? respondents Manoj Kumar, Ravi Kumar, one Anil Kumar s/o Gorkhu Ram, and Shimpu, who are residents of Jawali. On 20-9-1992, Vinod Kumar contacted some residents of his village Lahdu including Madan Singh (PW11), deceased Jarnail Singh, Pawan Kumar (PW10) etc., and asked them to mediate between him and the residents of village Jawali, particularly those who had assaulted him on the previous day and to get the rivalry between him and the residents of Jawali ended. On 21-9-1992, Vinod Kumar (PW12) accompanied by Balwinder Singh (PW4), Madan Singh (P11) deceased Jarnail Singh, Pawan Kumar (PW10) and six-seven other boys of Lahdu and Kiman village went to Jawali. Around 11.00 a.m, when they reached near the School of Jawali and sought to speak to the residents of Jawali, respondent Manoj Kumar, Ravi Kumar, one Shimpu and one Anil Kumar, who were armed with iron rod, knife and hockey sticks, appeared from a lane and attacked Jarnail Singh deceased. Respondent Ravi Kumar hit him on the head with hockey stick. Anil Kumar, who was armed with an iron rod, hit Madan Singh (PW11) on his head. Respondent Manoj Kumar who was having a knife inflicted injuries to Madan Singh (PW11) on his legs with knife. When Jarnail Singh fell on the ground, on account of beatings given with hockey sticks and iron rod by respondent Ravi Kumar and two other persons named Anil and Shimpu, respondent Manoj Kumar stabbed him in the back. Deceased Jarnail Singh and PW11 Madan Singh were rushed to the Hospital by Vinod Kumar (PW12). Jarnail Singh was alive, though semi-conscious, when taken to the hospital. He was gasping. Soon thereafter he died. After some time, Arun, a brother of Madan Singh (PW11) who too had been injured in the incident, was also brought to the Hospital. Madan Singh (PW11) and Arun were admitted to the hospital and were provided medical-aid. The aforesaid story was narrated to Dharam Chand (PW22), Head Constable of Police Station, Jawali at the Hospital by Madan Singh (PW11) at 2-00 P.M. vide statement Exhibit PAE. On the basis of that statement, case was formally registered vide FIR Exhibit PAE/1 at Police Station, Jawali. Head Constable Dharam Chand (PW22) then conducted inquest. Dead-body was sent to Civil Hospital, Nurpur for post-mortem examination. Medico Legal Examination of Madan Singh (PW11) and his brother Arun was conducted at the Hospital at Jawali by PW1 Dr. R.S. Jaswal. Deceased Jarnail Singh was also attended upon by PW1 Dr. Jaswal when he was taken to the Hospital at Jawali. He noticed the following injuries on the persons of deceased Jarnail Singh, Madan Singh (PW11) and Madan Singh’s brother Arun: 1. Jarnail Singh: “1. Contusion mark over right temporal region. 2. Contusion mark over ramus of right mandible. 3. Haematoma 4 X 3 cm. over right parietal prominance. 4. Incised stab wound over left side of the back just below interior angle of scaupula 4 cm long, depth could not be ascertained. Wound was stitched. 2. Madan Singh: 1. Left leg: incised wound on it with clear cut edges and well defined margins 4 cm. long present on the medial side 3 cm. above upper end of medial epicondyle of femur. Muscle deep. Fresh bleeding present. No fracture of bone underneath. 2. Right leg: incised would on it with clear cut margins 2 cm. long present on the lateral aspect of middle of right thigh, skin deep, fresh bleeding present. No fracture of the bone noticed. 3. Two incised wounds over right parietal prominance respectively 4 cm and 3 cm. in length, skin deep, fresh bleeding present. No fracture of the wound underneath. Wounds were parallel to each other. 4. Multiple contusions of variable length and breadth were noticed over back, colour bright red. Tenderness present. No fracture of bone underneath. 3. Arun: 1. Contused lacerated wound over right parietal prominance, skin deep with irregular edges and ragged margins 5 cm. long, no fracture of bone underneath, fresh bleeding present. 2. Haematoma 4 cm X 4 cm. over middle of left lower leg. Tenderness present along with swelling of soft tissue. No fracture of bone noticed. 3. Left foot: Abrasion over head of Ist metatarsal 4 cm. long, fresh bleeding present. No fracture of bone underneath. 4. Multiple contusions of variable size were present over back, colour was bright red. No fracture of bone underneath.” Post mortem examination was conducted by Dr. Vijay Kumar (PW2) on the next following day. He noticed the following ante-mortem external injuries: “EXTERNAL APPEARANCE. Moderately built, height 5’-6”. Rigor mortis was present except at neck and face. Dark coloured fluid came out of nose and mouth on pressing the distended abdomen. Post mortem staining was present. All the 28 teeth were present. Clothes: His clothing was (1) shirt terricot, reddish white soiled with blood on back with a clean cut on the left side of back. (2) Bluish banyan soiled with blood on back side with a clean cut underlying as that of shirt. (3) White short pant (nikkar), (4) grey terricot pent. There was no ligature mark on neck. Injuries: 1. A single red contusion of size 6 cm. X 3 cm. on the right side of temporal region extending to lateral angle of right eye, with underlying haematoma. 2. Swelling with underlying haematoma of size 5 X 4 cm. on the right parietal eminence. 3. Reddish contusion and abrasion on the right side of face extending over mandible to chin. 4. Single contusion 8 X 3 cm. in size on the left infra-scapular region with a healthy zone of 1 cm. in centre. 5. A single wound of size 3.5 cm. long stitched with cotton thread present on the left side of back 6 cm. away from the midline at the level of Dorsal vertebra No.9. On cutting these stitches, wound gaped to form spindle shape with width of 1 cm. in contre, and on probing the wound was entering the chest. There was profuse amount of blood coming out of the wound.’ On opening the thorax, he noticed that pleurae was ruptured and left lung had an incised wound which caused collapse of the lower lobe. He gave the opinion that the cause of death was cardio respiratory arrest due to shock resulting from the head injury and heamophneumo thorax with collapsed left lung. On the day next following the day of the incident, PW19 Ram Lal, Deputy Superintendent of Police, recorded a supplementary statement of Madan Singh (PW11) under Section 161 of the Code of Criminal Procedure. As per this supplementary statement, before the respondents named in Exhibit PAE assaulted deceased Jarnail Singh, Madan Singh (PW11) and Arun, the brother of PW11 Madan Singh, Gorakh Nath respondent exhorted them to attack Vinod Kumar, Jarnail Singh and their companions. Respondent Manoj Kumar is the son of Gorakh Nath. Prosecution examined Balwinder Singh alias Toti (PW4), Pawan Kumar (PW10), Madan Singh (PW11) and Vinod Kumar (PW12) as eye witnesses to prove the charge. All of them testified that the respondents, other than respondent Gorakh Nath, on being instigated by respondent Gorkh Nath, assaulted Jarnail Singh, Madan Singh (PW11) and Madan Singh’s brother Arun and inflicted injuries by means of a knife, two hockey sticks and iron rod. Respondents took the plea that Vinod Kumar was habitual of teasing the girls studying in Jawali Government School and because of that, people of Jawali Township turned hostile against him and did not like his entry to the township and that when on the fateful day, Vinod Kumar, accompanied by Jarnail Singh deceased and a large number of persons went to Jawali, he was attacked by the mob but Vinod Kumar escaped while Jarnail Singh and some of his companions, including Madan Singh (PW11) sustained injuries. All the respondents denied their involvement in the commission of crime. They claimed that they were not part of the mob which attacked Vinod Kumar and deceased Jarnail Singh and other members of their group. Trial Court has dis-believed the version of the prosecution. It has observed that the earliest version which was given to the Police in the form of Statement Exhibit-PAE of Madan Singh (PW11) was the result of deliberations because their had been un-explained delay of about two and half hours in recording the said statement. It was also observed that the real genesis of the occurrence had been suppressed. Learned trial Court also held that conduct of Vinod Kumar (PW12) and Pawan Kumar (PW10) in not making the statements to the Police soon after the occurrence but making such statements five days later was indicative of their guilty conscious which suggested that the plea raised by the respondents was true. Trial Court also observed that none of the respondents was a student of the College where Vinod Kumar (PW12) studied and the students of which College elected him their President. It was further observed that even the injured and other persons excepting Jarnail Singh deceased, who accompanied Vinod Kumar were also not the students of the College and this fact belied the prosecution story that Vinod Kumar and his companions were assaulted because of election rivalry. Trial Court also criticized the conduct of Head Constable Dharam Chand (PW22) and observed that he had acted in a partisan manner in conducting the investigation. We have heard learned Additional Advocate General and learned counsel representing the respondents and also gone through the evidence on record. Dharam Chand Head Constable (PW22) who recorded the statement, Exhibit PAE, of Madan Singh, under Section 154 of the Code of Criminal Procedure of Madan Singh (PW11) stated that he was on duty in connection with Board Examination in Jawali School from 9.00 a.m. to 12.00 p.m. on the fateful day and that he returned to the Police Station at 1.00 P.M from where he was deputed to the Hospital at Jawali by M.H.C. as he (M.H.C.) had received information from the Hospital that three persons with injuries had been admitted and that on reaching the Hospital, he made application Exhibit PA/F to the Doctor to ascertain if any of the injured was fit to make statement and on being informed by the Doctor, in writing, vide endorsement Exhibit PAF/1, that Madan Singh and Arun Kumar were fit to make statements, he recorded the statement, Exhibit PAE, of Madan Singh (PW11). The testimony of the witness that he reached the Hospital after he was deputed by MHC on his return to the Police Station at 1.00 P.M, is proved to be false by the documentary evidence, adduced by the prosecution itself. There is an entry in the Roznamcha maintained at the Police Station, copy Exhibit CA, per which the witness left for the spot at 10.30 a.m. As per Exhibit-CA, information was received at Police Station, Jawali that there was apprehension of a clash between two groups in the Bazar. It was because of this information that PW22 Head Constable Dharam Chand was deputed to maintain law and order and to avert the clash. The site of the incident is at a distance of one km. from the Police Station. Head Constable Dharam Chand must have reached the spot before 11.00 a.m., even if he went on foot. Incident is also alleged to have taken place at 11.00 a.m. That means he was supposed to be present on the spot when the incident took place. In other words, he can be presumed to have even witnessed the occurrence. However, he, in his deposition as PW22, cooked up a false story that he was not on the spot when the incident took place by saying that he was on duty in the School from 9.00 a.m. to 12.00 p.m. Presence of this witness (Head Constable) in the Hospital at 11.45 a.m. is also proved by documentary evidence. The documents are the Medico Legal Certificates Exhibit PB and PC pertaining to Madan Singh (PW11) and his brother Arun Kumar, respectively, in which the Doctor has specifically stated that these injured persons had been brought to the Hospital at 11. 45 a.m. by Head Constable Dharam Chand. Dr. R. S. Jaswal (PW1) while in the witness box, categorically stated that the injured had been brought to the Hospital at 11.30 a.m. meaning thereby that PW22 Dharam Chand was in the Hospital at 11.30 a.m. Now when Dharam Chand was present on the spot at the time of occurrence or in any case he was present in the Hospital at 11.30 a.m, per deposition of PW1 Dr. R.S. Jaswal, he was supposed to have recorded the statement of one of the two injured or some other eye witness of the occurrence immediately. Prosecution offered no explanation for Head Constable Dharam Chand deferring the recording of the statement of Madan Singh (PW11) under Section 154 of the Code of Criminal Procedure by about three hours. This three hours time was too long to cook up a false story or at least to embellish the true version. We are in agreement with the observation of the trial Court that the real genesis of the occurrence has been with-held by the prosecution. As per the earliest version given to the Police and the testimony of PW12 Vinod Kumar, the cause of attack on Jarnail Singh and his other companions, including Madan Singh (PW11) and Arun was that the respondents, who are residents of Jawali, were opposed to his election as President of the Students Union of Government College Dehri. This story does not appear to be true. None of the persons who accompanied Vinod Kumar to Jawali on the fateful day, except deceased Jarnail Singh, was a student of the College. None of the respondents is a student of the College. Two of them were students of Government School Jawali at the relevant time and one was studying at Dharamshala. Name of respondent Gorakh Nath does not find mention in the earliest version, which is otherwise a detailed one and as observed herein above also belated. No explanation was put-forward by PW11, while in the witness box, for not naming Gorakh Nath as an accused in the FIR or attributing the alleged role of exhortation to him in the said version. We do not find the name of said Gorakh Nath even in the inquest report Exhibit PAG which was supposedly prepared after the recording of the statement, under Section 154 of the Code of Criminal Procedure. Also we find that in the F.I.R, only two of the respondents are named. They are Manjoj Kumar and Ravi Kumar. Two other persons named as accused in the FIR are Anil Kumar and Shimpu. There is no evidence on record suggesting that respondent Shiv Kumar and Jatinder Kumar are also known by the aforesaid names of Anil Kumar and Shimpu. Therefore, it can legitimately be said that these two respondents are different from Anil Kumar and Shimpu named in the FIR. In the FIR, it is mentioned that besides Vinod Kumar (PW12), Balwinder Singh alias Toti (PW4), deceased Jarnail Singh, Pawan Kumar (PW10) and Madan Singh (PW11), there were six-seven other boys of Lahdu and Kimen villages. The identity of these six-seven boys is not disclosed either in the earliest version or during the course of the trial, in spite of the witnesses of the prosecution having specifically been questioned by the defense during their cross-examination as to what were the names and other particulars of said six-seven boys. It has come in the evidence, per testimony of Ram Lal (PW19) Deputy Superintendent of Police, who investigated the case, that Vinod Kumar (PW12), Pawan Kumar (PW10) and Balwinder Singh (PW4) did not make themselves available to the Police till 25th September, 1992. He stated that he searched for them at their native places as also at Jawali and some other places but they were not available, meaning thereby that they had absconded. Why should have these witnesses absconded if they were innocent and had gone to Jawali on the fateful day only to bring to an end the alleged rivalry between Vinod Kumar and the residents of Jawali. The conduct of these witnesses suggests that they have not come out with whole truth and have suppressed something very material. As a matter of fact, from an over-all reading of the testimony of Balwinder Singh (PW4) and Pawan Kumar (PW10) it appears that probably they were not even present on the spot. For example, both of them have stated that they reached Jawali on the fateful day after 11.00 a.m. but the entry Exhibit-CA in the Roznamcha maintained at the Police Station suggests that group representing the side of the deceased and the injured had assembled at Jawali before 10.35 a.m. The story of the prosecution that knife Exhibit-P1 was used by accused Manoj Kumar to cause the fatal injury to deceased Jarnail Singh is also doubtful. Balwinder Singh (PW4) very categorically stated that Exhibit- P1 was not the knife which respondent Manoj Kumar had used to stab deceased Jarnail Singh in his back. The other two witnesses also did not say that the knife Exhibit –P1 was the same with which respondent Manoj Kumar was armed. Both of them stated that they could not say with certainty if knife Exhibit-P1 was the same or it was different. In view of the above discussed position, we are of the considered view that this is not a fit case for interference in the judgment of acquittal passed by the trial Court. The appeal is accordingly dismissed. (Surjit Singh) Judge. (Surinder Singh), Judge. April 25, 2008. (bm)