Whether reporters of the local papers may be allowed to see the judgment?yes IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Criminal Appeal Nos.459 & 461 of 2005. Judgment reserved on: 06.05.2008. Date of decision: May 22, 2008. 1. Cr. A.No.459 of 2005. Ashok Kumar ….. Appellant. Versus State of H.P. …... Respondent. ------------------------------------------------------------------------ -------------- ----------- 2. Cr.A. No. 461 of 2005. Om Parkash …… Appellant. Versus State of H.P. …… Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting? Yes. For the appellants : Mr. Ajay Kochhar, Advocate. For the respondents: Mr. P.K. Sharma, Addl. Advocate General with Mr. P.M. Negi, Deputy Advocate General. Surinder Singh, Judge. Appellants herein were convicted by learned trial Court under Section 302 read with Section 34 of the Indian Penal Code and sentenced to under-go life imprisonment and to pay a fine of rupees 25,000/- each. In default of payment of fine they were further ordered to under-go rigorous imprisonment for a period of three years, for allegedly causing the death of one Shri Roshan Lal. Both the convict-appellants have challenged the judgment of their conviction and sentence by filing separate appeals, - 2 - which have been taken together for final decision as having arisen from the same judgment. ADMITTED FACTS OF THE CASE. (a) That deceased Roshan Lal was an old man aged about eighty years and was the owner of the landed property; (b) Said Shri Roshan Lal was residing in the village Temple of Baba Balak Nath all alone in village Tihra, Tehsil Bangana, District Una, which was constructed by him on the land having joint khata with the appellants; (c) About 3/4 months earlier to his murder, Roshan Lal had adopted a minor son named Sagar aged about 2½ years of PW1 Parveen Kumari and Parkash Chand (PW2); (d) Roshan Lal had executed a gift deed with respect to 8 kanals of his land in favour of Sagar. Om Parkash appellant had raised the objections, by moving an application (Ex.P24/F) dated 20.10.2003 before the Tehsildar, regarding the mutation of the gifted property in the name of Sagar; (e) Appellants are real brothers and are nephews of Roshan Lal deceased; (f) Ashok Kumar appellant was serving in Border Security Force, he was on leave with effect from 2-12-2003 to 7-12-2003 and had visited his village Tihra. - 3 - PROSECUTION CASE. Since Roshan Lal (deceased) used to live alone, Parveen Kumari and her husband Prakash Chand used to look after him and they used to provide meals to him. It is alleged that on 5-12-2003 at about 6-30 P.M, Parveen Kumari along with her husband went to serve the food to Roshan Lal in the Temple, which was located near to their house. While they were on their way, they heard the cries of Roshan Lal coming from the side of a rivulet saying, “Ruppu Mari Ditta Minjo Bachao” (Ruppu, he was being killed and he be saved). On hearing this, both of them proceeded towards the rivulet, seeing them coming the appellants threw Roshan Lal in the water of the rivulet. Another Parkash Chand son of Bhagat Ram (PW7), Bawa Pritam Chand (DW1), Des Raj and Mast Ram along with few other co-villagers came to the spot. The appellants ran away. Parveen Kumari and her husband took out Roshan Lal from the rivulet. He was unconscious and was having injuries on his eyes, mouth, nose and ears. The blood was oozing out from the mouth. Rup Ram (PW3) informed PW8 Madan Lal their Pradhan Gram Panchayat, telephonically. The Pradhan further rang up to the Police and went to the spot. Police also reached the spot and took Roshan Lal to the Primary Health Centre (PHC) Thana-Kalan for providing immediate medical help. Madan Lal, Parveen Kumari, her husband and some villagers had also accompanied the deceased to the P.H.C. The statement Exhibit PW1/A of Parveen Kumari was recorded under Section 154 of the Code of Criminal Procedure at 10.30 P.M. in the P.H.C. on the basis of which First Information Report Exhibit PW24/A was registered on the same day at 10.15 p.m. in the Police Station Bangana. - 4 - MEDICAL OPINION PW 10 Dr. Indu Bhardwaj medically examined him. Roshan Lal was in Grade II coma. He was naked & wrapped in a quilt. He was having injuries as indicated in MLC Ex.PW10/A. He was referred to Radiologist. PW9 Dr. Sabbir who had done the C.T.Scan Ex.P27 and his observations are Ex.PW9/A. At Una Zonal Hospital he was examined by Dr. Mohit (PW11), his injuries were x-rayed. The M.L.C is Ex.PW11/D. The condition of Roshan Lal did not improve, therefore, he was referred to Zonal Hospital, Una where he died on 8.12.2003. Autopsy of the dead-body was conducted by Dr. V.K. Raizada (PW12). In his opinion, the deceased had died due to multiple injuries with fracture of the nasal bone leading to hemorrhagic stroke and loss of blood. The ante-mortem injuries found on the dead-body of the deceased were opined to be sufficient to cause the death in normal circumstances. Post mortem report is Exhibit PW12/B. Viscera was also sent for the Chemical examination. Neither it contained alcohol nor poison. The report is Ex. PW22/A. Police took into possession the treatment summary Ex.PW10/A, clothes of the deceased and Pagri (Turban) with which the legs of the deceased were allegedly tied. The appellant Om Parkash was arrested on 8.12.2003 and Ashok Kumar on 18.12.2003. Pursuant to the disclosure statement Exhibit PW3/A, Om Parkash appellant allegedly got recovered the shoes (Ex.P7) of the deceased. The Police also took into possession the objection petition (Ex.PW24/F) dated 20.10.2003 moved by Om Parkash before the Naib Tehsildar. Police prepared the site plan and recorded - 5 - the statements of the witnesses. After completing the investigation, the challan was presented in the Court for trial of the appellants. The appellants were charge-sheeted for the aforesaid offence. They pleaded not guilty and claimed trial. To prove its case, the prosecution examined its witnesses and the appellants were also examined under Section 313 of the Code of Criminal Procedure. The plea of the appellants was of denial simplicitor. However, in defense, they examined Bawa Pritam Chand. FINDIINGS OF THE TRIAL COURT & CONTENTION IN APPEAL. At the end of trial, the appellants were convicted and sentenced as stated above and they have assailed their conviction and sentence by filing separate appeals on the ground that the learned trial Court did not appreciate the evidence of the prosecution in the light of the defense correctly. No motive was attributed to the appellants nor it ever existed to cause the death of Roshan Lal. The alleged eye witnesses had falsely implicated the appellants. Their statements are full of contradictions and the circumstantial evidence put forth could not link the appellants with the alleged crime. The material contradictions appearing in the statements of the prosecution witnesses were wrongly ignored by the learned trial court which has caused mis-carriage of justice. SUBMISSIONS MADE BEFORE US We have heard learned counsel for the parties at length and have reappraised the evidence in the light of their submissions. Shri Ajay Kochhar, learned counsel for the appellants has taken us through the evidence on record and pointed out - 6 - the omissions and contradictions appearing in the statements of the witnesses and vehementally argued that the learned trial Court has wrongly ignored the improvements made by the witnesses in their statements during the trial which makes the prosecution case quite doubtful and further, that the circumstances put-forth were not of a conclusive nature and tendency which could point out even remotely towards the guilt of the appellants. Contra, Shri P.K. Sharma, learned Additional Advocate General while supporting the judgment of conviction and sentence, has argued that the learned trial Court has rightly picked up the circumstances appearing against the appellants and had thoroughly examined and correctly relied upon it. The appellants could not digest that the property of Roshan Lal should go to some other persons out of their family tree which served the motive to commit the crime by the appellants. The minor contradictions are bound to be there in the statement of the witnesses but there is no error in the judgment, therefore, prayed for the dismissal of both the appeals. OUR FINDINGS We have given our thoughtful consideration to the rival contentions and have carefully scanned the evidence on record. On 5.12.2003, PW8 Madan Lal Pradhan was in his house in village Tanda which is different from the village of the deceased. Roop Lal PW3 informed him at about 7.15 p.m. telephonically that one person was killed and thrown in the Nallah. He did not inform the Pradhan about the names of the assailants or the deceased. PW8 aforesaid passed on this information to the police telephonically. PW18 ASI Mela Ram - 7 - had received the telephone in the police station around 7.45 p.m., to this effect he recorded the Rapat in the daily diary (Ex.PW15/A) and proceeded to the spot in the Govt. vehicle and reached there at 9 p.m. He recorded the statement (Ex.PW1/A) of Parveen Kumari at 10.30 p.m. and made his endorsement Ex.PW18/A thereon to register the case and made the search for the accused. However, there is no explanation, as to why the statement of PW1 Parveen Kumari was recorded at 10.30 p.m. when he had reached the spot at 9 p.m. This delay in the facts and circumstances of the case is fatal. According to him, Desh Raj, (PW18) Mast Ram (PW4) Banta Ram, Madan Lal Pradhan (PW8) and Pritam Singh (DW1), Parveen Kumari (PW1) and her husband (PW2) were present on the spot. PW3 Roop Lal did not support the prosecution case. According to him, on 5.12.03 he was not in his house but was sitting in the house of some other person. He did not listen any call alleged to have been given by the deceased in his name. But on hearing some noise (ROLLA), he went to the spot. He saw that Roshan Lal (deceased) was in the Nallah and he had asked the people to pull him out, if he was alive. The deceased was pulled out by Parkash Chand (PW2). He admitted that Om Prakash appellant was also present there. He did not look frightened. PW8 Madan Lal Pradhan had also admitted the presence of Om Prakash on the spot. According to him on the way, while coming to the spot he had met Ashok Kumar and Om Prakash appellants who were on the motor cycle. In his cross- examination he has categorically stated that Om Prakash had accompanied him to the place of occurrence where Praveen Kumari, her husband Prakash Chand and many other villagers were present. The body was already extracted from the Nallah. - 8 - Ashok Kumar had also reached the spot. Police took the injured Roshan Lal to the hospital, where he died on the third day. From the above facts testified by the witnesses in the court, it is manifest that both the appellants were present on the spot when the police had arrived and Pradhan (PW8) and other co-villagers were present. If the appellants were seen committing the alleged offence by the alleged eye witnesses namely, Parveen Kumari (PW1), Prakash Chand (PW2), Roop Lal (PW3), Mast Ram (PW4), Parkash Chand s/o Bhagat Ram (PW7), why did not they disclose it to Pradhan or other villagers present there and also to the police who had arrived on the spot, that the appellants were the real culprits. This is an important fact and a material discrepancy which raises a doubt on the authenticity of the prosecution case. Another fact as stated above beats any body’s imagination that the Police Station Bangana was only 33 kms from the spot. The distance is given in the FIR (Ex.PW24/A). ASI Mela Ram (PW18), after recording the rapat Ex.15/A at 7.45 p.m in the police station, went to the spot in the police vehicle. He was on the spot at 9 p.m. The complainant Pradhan and appellants were also present there, but no reason has been assigned by him as to why the statement Ex.PW1/A under section 154 Cr.P.C. of Parveen Kumari was recorded in P.H.C. Thana Kalen at 10.30 p.m. and not at the spot. It was sent for registration of the case through constable Amrik Singh to the Police Station and the FIR Ex.PW24/A was shown to have been registered at 11.15 p.m in the police station. Say within 45 minutes on the same day, whereas it was received by the Magistrate on 6.12.2003 at 10.10.p.m. and someone had tried - 9 - to overwrite P.M. as A.M. which further compounds the doubt in the authenticity of the prosecution version. Thus it is apparent that the statement (Ex.PW1/A) of Parveen Kumari (PW1) was recorded after due deliberations, which apparently appears to be a tainted version in the light of the above facts borne out from the documents of the prosecution. The initial version of Parveen Kumari in her statement (Ex.PW1/A) was that on 5.11.2003 at about 6.30 p.m. she along with her husband were going towards the temple to provide meals to Roshan Lal as usual, they heard Roshan Lal shouting. She along with her husband went running to that place. On seeing them, the appellants threw him in the water and ran away. Prakash Chand (PW7), Desh Raj and Pritam Chand (DW1) came to the spot. Her husband took out Roshan Lal out of the water. He was having bleeding injuries. One of the villagers had informed Pradhan who further informed the Police. But she has not stated about exchanging of any words with the appellants. Parveen Kumari as PW1 has stated that about twenty days prior to the incident Roshan Lal told her that the appellants were threatening him to give the land to them instead of Sagar. On 5-12-2003, at about 6.30 P.M, she along with her husband were going to Roshan Lal in the Temple to serve him food. When they reached near khud, Roshan Lal was crying that he was being beaten-up and he had shouted for Roop Lal (PW3) for help. She along with her husband rushed to the spot. She had informed her version during the trial that appellant Om Parkash on being asked to leave Roshan Lal, threatened them to shut their mouth lest they would also be dealt with in the - 10 - same way and they hurled abuses to them. Thereafter, the appellants threw Roshan Lal in the water of the Nullah (rivulet). At that time, Mast Ram, Khushia and Parkash Chand had reached there. They were also threatened to go away. She omitted the name of Baba Pritam Chand and introduced Khushia and stated that at that time, his legs were also tied with turban which were un-tied by them. They took out Roshan Lal from the water and noticed that blood was oozing out from his mouth. He was having many injuries on his person and was unconscious. Roop Lal informed the Police. Police visited the spot took Roshan Lal to the Primary Health Centre and recorded her statement Exhibit PW1/A in the presence of her husband and Madan Lal Pradhan. Thereafter Roshan Lal was taken to Civil Hospital, Una where he succumbed to the injuries after about two-three days. She produced the turban Exhibit-P1, shirt Exhibit-P2, T-shirt Exhibit-P3, inner-trouser Exhibit-P4, under-wear Exhibit-P5 and under-garments Exhibit-P6 of the deceased which were taken into possession by the Police vide Memo Exhibit PW1/B. Though her husband Parkash Chand (PW2) has corroborated her version, whereas, Roop Lal (PW3) as already stated above did not support the case of the prosecution that the deceased had shouted for help calling his name that he be saved. He did not state the names of the appellants as the assailants. When he had reached the spot he found that Roshan Lal was in the Nullah and he (PW3) asked the people to pull him out if he is alive and thereafter he went to the Pradhan. Parveen Kumari (PW1) was confronted with her statement Exhibit-PW1/A and her husband with his statement Exhibit-DA, recorded by the Police under Section 161 of the - 11 - Code of Criminal Procedure. In both these statements there was no mention that she or her husband had asked Ashok Kumar appellant to leave Roshan Lal deceased and that appellants told her to shut her mouth, otherwise she would also be given the same treatment. Even, she did not state about the presence of Mast Ram, (PW4) Kishnu and Parkash Chand (PW7) on the spot and the appellants having given threatening to them and told them to go away. Further, there was also no mention about tying the legs of the deceased with turban. Further according to her, Desh Raj, Mast Ram, Roop Lal and Pritam Chand along with others had come there and the appellant had already fled away. Similarly, PW2 Parkash Chand in his cross- examination has stated that he had informed the Police that Khushi Ram @ Khushia was also present on the spot but when confronted with his statement Exhibit-DA recorded on 5-12- 2003, this fact was not found mentioned. Further, according to him, he had told the Police that the accused had dragged the deceased to the Nullah but it was also not found mentioned therein. He further deposed that they had felt aggrieved when Om Parkash appellant gave an application to the Tehsildar not to sanction the mutation in favour of his son. Thus, it transpires that PWs 1 & 2 got the chance to implicate the appellants in the case to square their grudge more specifically when the real culprits were not known. In fact the deceased had also given some land to Jagdish the husband of Kamla, the daughter of Sheela, who had lived with Roshan Lal for about 25 years and died about 2 years before the alleged incident. He further admitted that the deceased had sufficient land and he had sold his land to many other persons. Even he gave some portion of - 12 - the land to one Santosh Kumari, his God daughter. He further admitted that deceased had constructed the Temple in the joint khata of the land with the appellants where he was living. Further, according to him, there was only a moon lit night at the time of alleged incident and no other light was there. Thus, on the examination of the above witnesses, we have found that there were material contradictions in their statements which render their testimonies highly doubtful. Now we proceed to examine the narration of other alleged eye witnesses. Mast Ram (PW4), has stated that he was un-loading the bags of Parkash Chand and Bhagat Ram. Around 6-30 P.M, on 5.12.03 he heard the cries of Roshan Lal in the name of Roop Lal to save him. According to him, he noticed the appellants holding Roshan Lal and Prakash Chand (PW2) was shouting “Chhod Do; Chhod Do” i.e. he be released, which is a different version than that of PW 1 and PW2 aforesaid. In his cross-examination, he was confronted with his statement Exhibit-PD recorded under Section 161 of the Code of Criminal Procedure wherein there was no mention of this fact. There was also no reference regarding dragging of the deceased by the appellants and throwing him in the “Nullah”. It is also pertinent to note that this witness is not the resident of the village of the deceased named “Tihra”. His village is at a distance of about three km from the village of the deceased, as admitted by him. He also admitted that there was a party faction in the village. In these circumstances, he happens to be a chance witness and the contradictions appearing in his statement are material which could not have been ignored. Against the above background, his testimony is also not free from doubt, which cannot be blindly relied upon. - 13 - PW7 Parkash Chand son of Bhagat Ram is another alleged eye witness. He has stated that around 6.30 P.M, he heard the voice of Roshan Lal which was given in the name of Roop Lal to save him. At that time, Mast Ram and Khushi Ram were also with him, but he did not say that he had engaged Mast Ram (PW4) to unload his cement bags as stated by PW4 aforesaid. However, according him, they saw the appellants dragging the deceased and Parveen Kumari was crying not to do so. This version is also different from the version of Parveen Kumari and her husband. In his cross-examination, he has stated that he saw the appellants dragging the deceased from a distance of about 150 mtrs and the Nullah was in the depression, whereas its banks were high. Roop Lal had given the telephonic message to the Police. He stated that Parveen Kumari and her husband had chased the appellants, but this fact was not stated by any of the witness. He was also confronted with his statement Exhibit-DC recorded by the Police under Section 161 Cr.P.C. wherein there was no mention that when he reached the spot, Parveen Kumari was crying that the appellants should not do that act and stop dragging the deceased. It is admitted by him that he had purchased the land from the father-in-law of Parveen Kumari after the incident. He also stated that both the appellants were arrested by the Police on the same day, whereas, PW2 Parkash Chand had stated that Om Parkash was arrested on the same day but Ashok Kumar was arrested after few days. However, it is an admitted fact that Om Prakash was arrested on 8.3.03 and Ashok Kumar on 18.3.03. This makes their version and the entire story a suspect. - 14 - Thus it has been seen that the statement of Prakash Chand (PW2) is juxtaposite to that of PW1 Praveen Kumari. Praveen Kumari did not say about the dragging of Roshan Lal by the appellants nor she had cried that appellants should stop dragging. PW7 Prakash Chand aforesaid did not say about tying of the legs of Roshan Lal as stated by Praveen Kumari. In these circumstances the statement of Prakash Chand (PW7) is also not worthy of credit. Therefore, the statements of the alleged eye witnesses discussed above are full of contradictions. There are material omissions and improvements hence these are not safe to act upon, more specifically when PW8 Madan Lal Pradhan in his cross-examination has stated that his statement was recorded alongwith the statement of other villagers in the police station and police started investigation to find out who were the culprits. This means, till late the real assailants were not known. The deceased was also a history-sheeter. He had given his land to different persons as stated above. Thus there is possibility that the alleged offence might have been committed by some other person. Ranjit Singh (PW24), is S.I/S.H.O. In his cross- examination, he has stated that the site plan was prepared at the instance of Pritam Chand (DW). Against the aforesaid background, statement of Baba Pritam Chand (DW1) assumes importance. According to him, he is a worshipper of Dargah in the village. Around 6.00 P.M, he was present in the house of appellants in connection with hiring of their truck. They heard the noise from the Nullah. He along with the appellant visited the spot and found Roshan Lal lying there and many persons had collected there, including Parveen Kumari and her husband Parkash Chand. He along with appellants asked all the persons, - 15 - including Parveen Kumari and Parkash Chand, about injured Roshan Lal but they did not know who had caused injuries to him. Then people asked them (PW1 & PW2) to take Roshan Lal to hospital but both of them told that they were the persons concerned and they themselves