IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA 1.Cr. Appeal No.565 of 2002. 2. Cr.Appeal No.49 of 2003. 3. Cr.Appeal 91 of 2003 Judgment Reserved On: 30.8.2011. Date of Decision: December ,2011. _______________________________________________ 1. Cr.Appeal No. 565 of 2002. Sunil Kumar son of Sh.Munshi Ram, R/O village Seola, Police Station Barmana, District, Bilaspur, H.P. ….Appellant. Versus. State of H.P through Secretary Home, Government of H.P. Shimla. ….Respondent. For the Appellant: Mr. Anup Chitkara, Advocate. For respondent-State Mr. R.K.Sharma, Addl. Advocate General. 2. Cr.Appeal No. 49 of 2003. State of H.P. ….Appellant. Versus. Sunil Kumar son of Sh.Munshi Ram, resident of village Seola, Police Station, Barmana, District Bilaspur, H.P. ….Respondent. For the Appellant: Mr. R.K.Sharma, Addl. Advocate General. For the respondent: Mr.Anup Chitkara, Advocate. 3. Cr.Appeal No. 91 of 2003. State of H.P. ….Appellant. Versus. 1.Sunil Kumar son of Sh.Munshi Ram, resident of village Seola, Police Station, Barmana, District Bilaspur, H.P. 2 2. Kashmir Singh son of Sh.Sukh Ram, resident of village Mangrot, Police Station, Sadar, District Bilaspur, H.P. 3. Chetanya Kumar son of Sh. Roshan Lal caste Brahmin, resident of village-Markand Police Station Sadar, District Bilaspur, H.P. ….Respondents. For the Appellant: Mr. R.K.Sharma, Addl. Advocate General. For the respondent-1 Mr.Anup Chitkara, Advocate. For respondent-3. Mr.T.S.Chauhan, Advocate. Coram: Hon’ble Mr. Justice R.B.Misra, Judge. Hon’ble Mr. Justice Dev Darshan Sud, Judge. Whether approved for reporting1?. Yes. Dev Darshan Sud,J. These three appeals are being disposed of by this judgment as they arise out of the same judgment of the learned Sessions Judge, Bilaspur convicting the appellant Sunil Kumar herein for offences under Section 304 Part-I I.P.C. to undergo rigorous imprisonment for a term of five years and fine of Rs.10,000/- and in default of payment of fine, to further undergo rigorous imprisonment for a term of six months under Section 304 Part-I I.P.C. The other two accused, namely, Kashmir Singh and Chetanya were acquitted by the learned trial court. 2. Criminal Appeal No. 565 of 2002 has been preferred by the accused Sunil Kumar challenging his conviction, Criminal Appeal No. 49 of 2003 titled State of H.P. Vs. Sunil Kumar has been preferred by the State praying for enhancement of sentence imposed upon the accused Sunil Kumar, and Criminal Appeal No. 91 of 2003 titled State Whether reporters of the Local papers are allowed to see the judgment.. 3 of H.P. Vs. Sunil Kumar and others has been filed by the State challenging the acquittal of the other two accused and praying for the conviction of all the accused under Section 304 read with Section 34 I.P.C. 3. The facts of the case, in brief, are that on 4.9.2001, PW2 Kewal Ram, who was the driver of truck No. HP-24-6125, after loading cement from A.C.C. factory Barmana, was proceeding towards Dhami. The deceased Balbir Singh was the conductor of the truck. When the truck reached near Ghagus, PW4 Chint Ram asked for a lift and he was taken on board. After the truck reached near the hand pump at Mangrot, four boys who were standing in the middle of the road signaled the truck to stop and asked for a lift. They forcibly boarded the truck and the three accused started beating the deceased as he had refused to comply with their request. Sunil Kumar reached out for a tie rod in the truck and hit the deceased on his head who became unconscious. The fourth boy accused PW11 Pawan Kumar remained outside the truck. PW4 Chint Ram and PW11 Pawan Kumar asked the three to desist from their unlawful activities but of no avail. PW 4 Chint Ram alighted from the truck. In the meanwhile, PW3 Baldev Singh, driver of truck No.HP-11-2825 which truck owned by Devi Ram Bansal also owner of the first truck, reached there. PW2 Kewal Ram and PW4 Chint Ram along with PW3 Baldev Singh went to the house of PW10 Hans Raj Sharma, Pradhan of the Gram Panchayat. On the way, PW4 Chint Ram disclosed the names of the accused. PW10 Hans Raj Sharma, Pradhan advised them to take the injured to the hospital for immediate medical treatment and when they reached there at around 9 P.M. the deceased was examined by PW1 Dr.N.K.Sankhyan, 4 who declared him dead on arrival. Thereafter, PW2 Kewal Ram and PW3 Baldev Singh reported the matter to the police. Report Ext.PE was lodged on the basis of which investigation commenced. PW9 S.I. Ranjha Ram took up the investigation. He prepared inquest report Ext.PB and Ext.PC and site plan Ext.PL. All the three accused were arrested from the house of PW11 Pawan Kumar on 6.9.2001. While in custody, accused Sunil Kumar made a disclosure statement under Section 27 of the Evidence Act stating that he get the wheel Panna (wheel tie rod) recovered. Statements of PW4 Chint Ram and PW11 Pawan Kumar were recorded under Section 164 Cr.P.C. by the learned Chief Judicial Magistrate, Bilaspur. All the three accused were arraigned for offences under Section 302 read with Section 34 I.P.C. 4. The prosecution examined twelve witnesses in support of its case. The defence produced five documents in support of its case. On conclusion of the trial, the learned trial Court acquitted two accused, Kashmir Singh and Chetanya and convicted Sunil Kumar under Section 304 part-I I.P.C. sentencing him to rigorous imprisonment for five years and fine of Rs. 10,000/- and in default of payment of fine to further undergo rigorous imprisonment for a term of six months. The convict is now in appeal while the State appeals against the acquittal of the other accused and also for enhancement of the sentence imposed upon accused Sunil Kumar. 5. The sequence of the case events and occurrence does not present much difficulty as from the evidence on record, the presence of the accused at the scene of the incident is established, more so, when we consider the trend of cross examination of the eye witnesses. We will advert to this part of the evidence later. 5 6. We also advert to the statement of the accused recorded under Section 313 Cr.P.C. Accused Sunil Kumar states that the case has been filed against him for political reasons. In reply to question No.28, he states that he has been falsely implicated in the case because of political rivalry. He says that his father is a member of the Congress party and the B.J.P. was at that time in power in the State. He says that his father has been implicated in false cases. His father was accused in the murder of one Dhayana Ram in which he was arrested and bailed out and again discharged by the Court. He states that there was no evidence against him but despite that the State persisted in prosecuting his father. He relied upon the orders passed by the Court in support of his defence. He says that he does not know PW2 Kewal Ram. PW4 Chint Ram is a liar because of old enmity with his father, who when he was the President of Gram Panchayat Jukhala, case of Devki Devi, sister of this witness was pending before his father and in that case, this witness had approached his father asking him to help her out. His father refused to do so, the case was decided against the sister of this witness and that is the reason why he holds a grudge against this accused. Pawan Kumar, according to him, has appeared in evidence who was under police pressure. The name of PW11 Pawan Kumar also figures in the F.I.R. All four of them were arrested and were beaten up by the police. Pawan Kumar is the only son of his parents, who visited the Police Station and told them that in case their son is released, he will state in evidence whatever the police wanted him to say. He (Pawan Kumar) was threatened in front of the other accused that in case he did not state in evidence what the police wanted him to do, he will be falsely implicated in a murder case. The 6 police had full advantage of the situation and they got the statements of both PW4 Chint Ram and PW11 Pawan Kumar recorded under Section 164 Cr.P.C. However, they were not relied upon by the police. He says that he relies upon these statements in defence. The case was a total fabrication; the police took out the tie rod from the truck which was usually lying there and forcibly got his signatures on the papers while he was in police lock up showing that it has been recovered at his instance. The other two accused have denied any wrong doing or complicity in the crime. 7. At the out set, we note that this defence of political rivalry has not been established from the record of the case. There is no oral or documentary evidence on record to substantiate any part of this plea. But we ignore this and proceed with the case on the evidence on record. The documents relied upon, namely, Ext.D1 copy of the order passed by learned Sessions Judge, Bilaspur in case titled Munshi Ram Vs. State of H.P granting bail to the petitioner therein, Ext.D2 order passed by the learned Sessions Judge on 17.12.1999 stating that there is no evidence against accused-Munshi Ram and he was discharged, Ext.D3 decision of the Gram Panchayat, Ext. D4 again decision of the Gram Panchayat, Ext.D5 and Ext.D6 are the statements of the two witnesses recorded under Section 164 Cr.P.C. establishes nothing save and except that the father of the accused was discharged in a case filed against him but not a whisper about any political rivalry. 8. We now advert to the other evidence on record. PW1 Dr.N.K.Sankhyan states that he had conducted the post mortem of deceased Balbir Singh on 5.9.2001. He records that both eyes of the 7 deceased were swollen and were of blackish blue in colour. Blood and fluid was coming out of both nostrils, left side of face was soiled with blood and fluid. Oral cavity was having blood fluid and larynx and trachea were full of blood/fluid. There was swelling over the scalp in area of 6cm x 8 cms over left parieto temporal region. On dissection and after reflecting the scalp there was gross contusion over inner surface of scalp over both side parieto temporal region. There was contusion over right fronto parieto tamporal region in area of 10 cms x 10 cms over the muscles of skull in this area with depressed fracture of temporal bone right side. The depressed bone was in area of 6 cms x 6 cms and the fracture was towards the pinna side. After opening the skull cap, there was extradural hemorrhage. No injury to the brain was seen with naked eye. No other injuries were present on the body of the deceased. In his opinion, Balbir Singh had died due to asphyxia and a result of chocking due to head injury. Probable time that elapsed between injury and death was few minutes to three hours and between death and post mortem was 12 hours to 18 hours. He proved on record post mortem report Ext.PD and stated that injury found on the deceased was possible with Ext.P1 which is the wheel Panna (wheel tie rod). He says that there was external injury towards the left side of the head while bone fractures on the right side of the head. He admits that if there is scuffle and the victim strikes against the iron rod of the window of the truck and falls on a hard surface, fracture can be possible. He says that due to the head injuries, blood trickled down which resulted in ultimate death. He admits that there was one injury on the person of the deceased and there was possibility of other injuries on the body if the deceased had been kicked and punched. 8 9. We now advert to the evidence of PW2 Kewal Ram, who was the driver of the truck. He says that on the fateful day i.e. 4.9.2001, the truck was loaded with cement from A.C.C. factory, Barmana and he proceeded at around 7.30 p.m. towards Dhami. Deceased Balbir Singh was the conductor of the truck. He was the son of the maternal uncle of this witness. When the truck reached near Ghagus, PW4 Chint Ram signaled for a lift and he was taken on board. When they reached near hand pump at Mangrot, four boys were standing in the middle of the road, who forced him to stop the truck asking him for a lift. They approached the truck from the side where the conductor was seated and boarded it despite resistance from him. All of them started beating the deceased Balbir Singh. Sunil Kumar struck him with wheel tie rod on the head and the other two accused started kicking and punching him. As a result of the injuries sustained on his head, Balbir Singh became unconscious and fell down. The fourth person PW11 Pawan Kumar remained outside the truck. PW4 Chint Ram and PW11 Pawan Kumar were asking the accused not to beat up the deceased. After this incident, Sunil Kumar accused asked him to leave the place. PW4 Chint Ram got down from the truck at the spot and he (Kewal Ram) drove it towards Mangrot and stopped it near a hotel/Dhaba, where he raised a hue and cry. In the meantime, PW 3 Baldev Singh driver of the other truck also reached the spot. PW4 Chint Ram was walking and he along with PW3 Baldev Singh went to the house of PW10 Hans Raj, Pradhan Gram Panchyat, Mangrot. On the way, PW4 Chint Ram disclosed the names of the accused as Sunil Kumar, Chetanya and Kashmir Singh. They reported the matter to the Pradhan, who asked them to take the injured to the 9 hospital where they reached at around 9 P.M. The injured was declared dead on arrival. Thereafter he and PW3 Baldev Singh went to the Police Station, Bilaspur and lodged report Ext. PE. The police visited the spot on the next day. He identified the wheel Panna Ext.P1 which was the same instrument of the assault used on the deceased. In cross-examination, he denied the suggestion that on the day of incident, there was 7/8 boys who had parked their vehicles near the hotel for taking meals and these persons were moving about on the road. He admits that PW4 Chint Ram had got down at the site of the incident. He also admitted the suggestion that the deceased had refused to give lift to the accused. The answer given by him is reproduced: “It is correct to suggest that the deceased refused to give the lift to the accused.” 10. The other suggestions immediately following this is that the deceased had kicked one of the accused, who fell down on the road and that when the truck started moving, the other boys asked the conductor to come down from the vehicle and ask for forgiveness from the boys (accused) whom he had assaulted. He also denied the suggestion that he had asked the deceased as to why he kicked one of the boys. The other suggestion which follow is that these boys opened the window and started dragging out the deceased. He replied that it was the accused who had opened the window. The other suggestion which again follows is that in the scuffle when the deceased was being dragged out from the truck window, he (deceased) struck his head against the iron rod of the window and fell down on the mettled road. In fact the trend of the cross-examination is that a scuffle was, in fact, in progress. He admits that there was no blood on the head of the 10 injured which was visible and that he narrated the entire incident to the Pradhan. He admits that he had told the police that Sunil Kumar accused struck the deceased on the head with wheel tie rod. On suggestion given by accused Chetanya, he says that the deceased died not because of fist and kick blows but as a result of injury caused by the wheel tie rod. 11. PW3 Baldev Singh was the driver of other truck No. HP-11-2825 which was also owned by Devi Ram Bansal and this truck was also loaded with cement and proceeding to Dhami. He says that near Mangrot, PW2 Kewal Ram came from behind in a truck and was shouting that Balbir Singh had been beaten up. Thereafter, he parked his truck near the hotel/Dhaba, where PW2 Kewal Ram told him that Balbir Singh was beaten by three boys. Thereafter he, PW2 Kewal Ram and PW4 Chint Ram went to the house of Pradhan PW10 Hans Raj Sharma and apprised him about the entire incident, who asked them to take the injured to the hospital for medical treatment. There the doctor on duty told them that Balbir Singh was dead. He has been cross-examined at length but there is nothing to suggest that what he states in examination-in-chief is not the correct version of the incident. 12. PW4 Chint Ram is the other witness, who had taken a lift in the truck. He says that he is running a Chana Bhatura shop at Ghagus for the last 20 years. On the fateful day, he had taken lift in the truck from Ghagus to Mangrot (his native village). PW2 Kewal Ram was the driver of the truck and Balbir Singh was the conductor. When they reached near Mangrot village, four boys were standing in the middle of the road forcing the driver of the truck to slow down and stop. One boy Sunil Kumar went towards the side where conductor was seated (he (accused) was identified in the court) asked him for 11 a lift, the deceased refused to comply with his request on the ground that they have to stop the truck near a hotel/Dhaba which was at a distance of half kilometer ahead. At this, accused Sunil Kumar forcibly opened the window of the conductor was seated and entered the truck. He delivered a blow with wheel Panna (wheel tie rod) on the head of the deceased, who fell down unconscious. The accused Chetanya and Kashmir Singh remained outside the truck. He identified Kashmir Singh, who was present in Court at that time. He was declared hostile and he did not support some portions of his statement recorded by the police. He was cross-examined at length by the learned Public Prosecutor. He admitted that Sunil Kumar and Kashmir Singh are habitual criminals. He says that he got down from the truck when it was stopped after the scuffle. He had seen Balbir Singh in an injured and unconscious condition. He disclosed the names and addresses of these persons to PW2 Kewal Ram which he also disclosed to the Pradhan. He then states: “It is correct to suggest that when the accused were giving beatings with kicks and fists blows, I and Pawan Kumar had advised them not to give beatings to the deceased Balbir Singh. After giving blow of Panna by accused Sunil Kumar, all the accused including Pawan Kumar have left the place of occurrence. It is correct that all the three accused belong to my area.” 13. It is this part of the testimony which also assumes importance as he admits the case of the prosecution in toto. In cross- examination by the other accused, the suggestion given to him is that the boys wanted a lift. The other suggestion admitted by him is that Balbir Singh had refused to comply with the command of the accused to give them a lift. He denied the other suggestion that the conductor 12 kicked one of the boys after opening the window. He does not accept the suggestion that when the scuffle was taking place, the deceased was dragged out from the truck window when he struck against the iron rod and then fell down on the road. He says that he admits that his sister Devki Devi is married in village Manjhot and that she has some property dispute with her devar (brother-in-law) etc. and that a case was pending in the Gram Panchayat, Jukhala where Munshi Ram was the President of the Gram Panchayat. The other suggestions about his approaching to Munshi Ram for favourable outcome of the case are denied by him. He admits having recorded a statement under Section 164 Cr.P.C. before the learned Chief Judicial Magistrate. 14. PW6 Parkash Chand is a witness to the recovery. PW10 Hans Raj Sharma, Pradhan of Gram Panchayat, Makari states that on 4.9.2001 at around 8.30 p.m., his uncle PW4 Chint Ram along with driver PW2 Kewal Ram and PW3 Baldev Singh came to his house told him that 3/4 boys had beaten up the conductor of truck No HP-24- 6125 on which he tried to contact the police. He says that the names of the assailant were not disclosed to him. He was declared hostile and was cross-examined by the Public Prosecutor. 15. PW11 Pawan Kumar, who was one of the party along with other accused who stopped the truck, says that at around 7 p.m. on 4.9.2001, he went to the house of PW10 Hans Raj Sharma, Pradhan Gram Panchayat, Makari as Kashmir Singh has to obtain a certificate from the Pradhan because his house has been damaged due to heavy rain. Thereafter he along with Kashmir Singh went to the hotel/Dhaba of one Sanju where Sunil Kumar and Chetanya were present having meals. Kashmir Singh asked Sunil Kumar and Chetanya 13 to stay in his house during the night. They started towards Ghagus through the main road. When they reached near the hand pump, he saw a truck coming from Ghagus side and stopped it from which PW4 Chint Ram alighted. Sunil Kumar asked the conductor for a lift as he had to go towards Jukhala. When he tried to take the lift forcibly, conductor of the truck kicked him due to which Sunil Kumar fell down on the ground. He was declared hostile and cross examined at length. He admits that after the incident, all the accused went to his house at the night when the police came there. This witness was also one of the accused in the case. He admits in his cross-examination that it was dark night and that the head lights of the truck were on during the period when there was a scuffle. He also admits that he disclosed the names of all the accused persons to the police in a statement which was recorded under Section 161 Cr.P.C. We advert to a statement under Section 164 Cr.P.C. which was recorded before the Chief Judicial Magistrate, Bilaspur in which he says that he is a resident of Mangrot and a student of boys school, Bilaspur where he studying in plus one. On 4.9.2001 he along with Kashmir Singh went to the house of the Pradhan to collect certificates/certified documents. When he was returning from the house of the Pradhan then near the hotel of one Sanju, he and Kashmir Singh met Chatenya and Sunil Kumar. Kashmir Singh asked both of them to stay in his house in the night. When they reached near the hand pump on the road side, one truck which was coming from the Ghagus side, reached there. Sunil Kumar, Kashmir Singh and Chatenya blocked its progress by standing in the centre of the road. When the truck stopped, all three of them asked the conductor to open the window but their request was not complied 14 with. After some time, Chint Ram opened the door/window of the truck and alighted therefrom. Thereafter Sunil Kumar boarded the truck and assaulted the conductor. He was beaten up with fist cuffs and thereafter with a tie rod. This statement is in concord to what he states in his evidence in the Court. We advert to the evidence on