IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.A No.366 of 2004 Reserved on : January 3, 2008. Decided on : January 8, 2008. Gopal Chander and another …Appellants. 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?1 For the Appellants : Mr. Vinay Thakur, Advocate. For the Respondent : Mr. Som Dutt Vasudeva, Additional Advocate General, with Mr. D.S. Nainta, Deputy Advocate General. Surjit Singh, Judge Appellants and three other persons were sent up for trial for offences, punishable under Sections 302 and 201 IPC. Three other persons, who were challaned alongwith the appellants were Kapoor Singh (now deceased), Bahadur Singh and Bakhtavar Singh. Kapoor Singh died during the proceedings of the trial. Bakhtavar Singh and Bahadur Singh were acquitted, as no evidence was adduced against them. 2. Trial Court, on the conclusion of the trial, convicted the appellants of offences punishable under Sections 302 and 201 IPC and sentenced them to undergo imprisonment for life and to pay a fine of Rs.1,000/- each, in respect of offence punishable, under Section 302 IPC, and to undergo rigorous imprisonment for three years and a Whether reporters of the local papers may be allowed to see the judgment? …2… fine of Rs.500/- each, in respect of offence punishable under Section 201 IPC. Appellants have preferred the present appeal against their aforesaid conviction and sentence. 3. Deceased Dev Krishan was nephew of appellant Gopal Chander. He had the feeling that land proportionate to the share of his late father Gopi Lal had not been given to him by his father’s brothers, including Gopal Chander and deceased accused Kapoor Singh. So, he used to demand his father’s share in the land of his grandfather from appellant Gopal Chander and deceased accused Kapoor Singh. On account of this demand by deceased Dev Krishan, relations between appellant Gopal Chander, deceased Kapoor Singh and other accused on one side and deceased Dev Krishan on the other were not cordial. 4. On 17.2.1998 when some labourers, engaged by appellant Gopal Chander, were doing construction work in village Sakiba, deceased Dev Krishan is alleged to have gone there and prevented those labourers from doing the construction work, on the plea that the land belonged to him. Appellant Gopal Chander was not there at that time. Labourers engaged by appellant Gopal Chander went to him and apprised him of the aforesaid fact. So, appellant Gopal Chander thought of teaching a lesson to deceased Dev Krishan. The same day, in the evening around 9 p.m., deceased was beaten up by both the appellants and their deceased accomplice Kapoor Singh with sticks. Several injuries were caused to him. One of the injuries was on the head, which proved fatal. The deceased was left by the side of the road in injured state. Next morning, his dead body was spotted by PW-5 Tulsi Ram. It was still dark when PW-5 Tulsi Ram saw the dead body. In the meanwhile, appellant …3… Gopal Chander and his deceased accomplice Kapoor Singh also reached there. They tried to lift the dead body, with a view to taking it to the verandah of their building. They were prevented from doing so by PW-5 Tulsi Ram, because one Narender, who also happened to reach the spot, told him that appellant Gopal Chander and his deceased accomplice Kapoor Singh had beaten up the deceased on the previous night. The two are alleged to have ultimately carried the dead body to the verandah of their building and to have removed the wet clothes from the dead body. They also allegedly washed the dead body and started preparing to cremate it. Appellant Gopal Chander then went to the mother of the deceased, namely PW-1 Gulab Devi, in village Akpa, and informed her about death of Dev Krishan. PW-1 Gulab Devi reached the spot. Appellant Gopal Chander offered to pay her Rs.20,000/- as compounding money. 5. Matter was reported to the police by PW -1 Gulab Devi. Police conducted inquest and sent the dead body for postmortem examination. Following injuries were noticed on the dead body by PW-8 Dr. Sunder Negi, who conducted the postmortem examination: “1. 2” long x 1” wide bone deep lacerated injury at the anterior part of scalp. Below this injury crepitus present. On examination 2” x 3” comminuted fracture present over upper part of frontal bone and left parietal bone. Subdural haemorrhage present. 2. Swelling/bruise over left hand dorsum of size of 6” x 4” and fracture of simple linear 2nd and 3rd metacarpal bone. Bruise bluish in colour. 3. 6” long x 2” wide bruise over lower 2/3 of left forearm. Dorsal aspect extending upto wrist joint. Bluish and brown in colour. 4. 2” x 1” bruise over posterior side of left shoulder. Bluish in colour. …4… 5. Two in number 6” long horizontal and ½” apart linear bruises over lower part of sternum and lower chest. 6. 1” long 1” wide lacerated injury over left shin, 5” below left knee joint. 7. 3” long x 4” wide bruise bluish over dorsum of the right hand. No bone injury. 8. 3” long x 2½” wide abraded bruise over upper part of back of neck. On examination comminuted fracture of cervical vertebrae 2 and 3. 9. An old oval scar mark of 1” diameter present over left side of back of neck. 10. 9” long x 4” wide bruise over lateral side of left thigh upper 1/3, bluish brown in colour. 11. 8” long 6” broad bluish bruise over left gluteal region with linear multiple marks (linear contusions). 12. 11” long x 3” broad brownish bruise over upper part of right thigh anteriorly. 13. 5” long x 4” wide bruise over right lumber area. 14. 7” long x 4” broad bluish bruise over upper part of left scapula. 15. 4 small reddish abrasions over left anterior superior ilias spine.” The doctor opined that the injuries could have been caused by means of a stick. 6. During the course of investigation, five persons, namely PW-2 Charanjit Singh, PW-10 Fullu Chhering, PW-12 Narender Kumar, PW-13 Mohinder Kumar and PW-20 Hari Keshav told the police that they had seen appellant Gopal Chander, his deceased accomplice Kapoor Singh and appellant Pradeep Kumar giving beating to deceased Dev Krishan with sticks on 17.2.1998 around 9.30 p.m. Police arrested the two appellants and their deceased accomplice Kapoor Singh. …5… 7. Appellants made disclosure statements leading to the discovery of two sticks, Ex. P-7 and Ex. P-9, allegedly used by them to inflict injuries to the deceased, including the head injury, which caused the death. Statement of PW-10 Fullu Chhering was got recorded, under Section 164 of the Code of Criminal Procedure, from Chief Judicial Magistrate, Kinnaur (Shri R.K. Mittal PW-27). Stick Ex. P-7 recovered at the instance of appellant Gopal Krishan was found to have stuck to it a few fibers. The said stick with fibers stuck to it alongwith the jacket of the deceased were sent to the Chemical Examiner, who, vide report Ex. PB, opined that the fibers stuck to stick Ex. P-7 tallied with the fibers of the jacket. 8. During the course of trial, four, out of five alleged eye- witnesses, namely PW-2 Charanjit Singh, PW-10 Fullu Chhering, PW- 12 Narender Kumar and PW-13 Mohinder Kumar, turned hostile. Only PW-20 Hari Keshav supported the prosecution version. Trial Court has believed the testimony of PW-20 Hari Keshav as also that of PW-1 Gulab Devi, the mother of the deceased, and come to the conclusion that the charge against the two appellants stands proved beyond reasonable doubt. Consequently, the appellants have been convicted and sentenced, as aforesaid. 9. We have perused the record and heard the learned counsel for the appellants as also the learned Additional Advocate General. 10. Trial Court has observed that the testimony of PW-20 Hari Keshav and PW-1 Gulab Devi, the mother of the deceased, read with the statement of PW-10 Fullu Chhering, under Section 164 of the Code of Criminal Procedure, which he made to PW-27 Shri R.K. Mittal, Chief Judicial Magistrate, during the course of investigation, …6… conclusively prove that the two appellants were involved in the killing of the deceased. That means the trial Court has used statement, under Section 164 of the Code of Criminal Procedure, of PW-10 Fullu Chhering, as substantive evidence, even though it could have been used only for corroboration or contradiction of the testimony of its maker, namely PW-10 Fullu Chhering, in the Court. To convict the appellants for offence punishable under Section 201 IPC, the trial Court has made use of statement of PW-2 Charanjit Singh, which he made to the police, under Section 161 of the Code of Criminal Procedure, during the investigation. This course adopted by the trial Court is also contrary to law being in clear violation of the bar contained in Section 162 of the Code of Criminal Procedure. 11. Deceased was admittedly a nephew of appellant Gopal Chander and Kapoor Singh, the deceased accused. Prosecution’s story is that they had a motive to kill him because he used to demand his father’s share in the land of his grandfather, that is to say the father of appellant Gopal Chander and deceased’s father’s father. Evidence that has been adduced by the prosecution itself shows that the grandfather of the deceased had only ten bighas of holding. He had five sons, including appellant Gopal Chander, deceased accused Kapoor Singh and Gopi, father of the deceased. Each son was supposed to get two bighas of land only. PW-1 Gulab Devi, the mother of the deceased, admitted that her father-in-law Nargu Dorje, made a Will and gave major portion of the property to one of his co- wives. Now, if the grandfather of the deceased had made a Will, bequeathing major portion of his property in favour of one of his co- wives, the question of the deceased demanding any share in his grandfather’s property could not arise. Not only this, PW-18 Dalip …7… Kumar, a brother of the deceased, testified that out of his grandfather’s holding, two bighas land had been allotted to his mother, even though he stated that after the year 1998 his mother had been dispossessed therefrom. Incident took place in the year 1998. That means when the incident took place, the mother of the deceased was in possession of two bighas, out of the holding of her father-in- law. Her father-in-law had five sons, as already noticed, and, therefore, she could not have been allotted more than 1/5th of the holding, the area of which comes to exactly two bighas. That means she had been allotted land equivalent to the share of her husband, out of her father-in-law’s ten bighas holding and this way also there could not have been any question of the deceased demanding land from the appellants and the appellants not acceding to his demand and because of that there being acrimony in their relationship. In fact, PW-1 Gulab Devi herself demolishes this story of demand of share in land by stating in the cross-examination that the deceased had gone to the house of appellant Gopal Chander, because the two were having cordial relations. Under these circumstances, it cannot be said that there was any motive for the killing of the deceased by the appellants, particularly when they are close relatives. We may notice here that appellant Pradeep Kumar is the son of appellant Gopal Chander. 12. Allegation that the deceased on the fateful day went to the site where a few labourers engaged by the appellants were doing construction work and prevented them from doing so is not established. In fact, no evidence was led to substantiate the same. 13. It has come in the evidence that the deceased was a man of quarrelsome nature and used to pick quarrels with people after …8… consuming liquor quite often. The fact is admitted by PW-2 Charanjit Singh, PW-5 Tulsi Ram and PW-7 Gambhir Chand. It is in this background that the evidence of the prosecution is required to be scrutinized. 14. As already noticed, four, out of five alleged eye- witnesses, did not support the prosecution version. Only PW-20 Hari Keshav testified that he saw appellants Gopal Chander and Pradeep Kumar dragging the deceased and carrying him to the room of their deceased accomplice Kapoor Singh and there both the appellants and their accomplice Kapoor Singh (deceased) giving beating to him with sticks. Testimony of the witness does not inspire confidence. He claims to be having a Dhaba in the neighbourhood of the Dhaba of appellant Gopal Chander. He has stated that he was called to the Police Station 2-3 days after the incident and it was then that he told the police officials that he had seen the occurrence, and the police then recorded his statement. His statement is, however, dated 1.3.1998. The witness is not on good terms with the appellants. Even though, no suggestion was put to the witness in the cross-examination that in an excise case instituted against him by the police, in a criminal Court, appellant Gopal Chander had appeared as a witness for the prosecution, the appellants tendered in evidence certified copy of the statement, which appellant Gopal Chander made against the witness, during the trial of the case in the Court of Judicial Magistrate. The same is Ex. DW-2/A. This statement was made in the presence of the witness (PW-20 Hari Keshav), as is clear from the copy of this statement that the deponent was cross-examined by the defence. 15. The witness says that the deceased was seen by him being dragged by the two appellants to the room of Kapoor Singh and …9… then being beaten up by the appellants and said Kapoor Singh with sticks, but the site plan Ex. PW-26/A prepared by the Investigating Officer, namely PW-26 Inspector Sukh Ram, apparently on the basis of the statements of other four eye-witnesses on the very day of the registration of the case, i.e. 18.2.1998, shows that the beating was given to the deceased at two points, one in the courtyard of the house and hotel of appellant Gopal Chander and then on the Katcha portion of the road abutting on the courtyard of the said house. As per this site plan, deceased was not given any beating in the house of Kapoor Singh, deceased accused. According to the site plan and the notes recorded below it, Kapoor Singh’s tin-shed was used only for keeping the dead body. The site plan also shows that the shop of PW-20 Hari Keshav is on one end (to the eastern side) and the building comprising the residence and hotel of appellant Gopal Chander where the deceased was beaten up is on the other end (the western side) and in between the two places, there are a number of houses and shops and tin-shed of deceased accused Kapoor Singh. 16. Conduct of PW-20 Hari Keshav also suggests that he may not be a truthful witness. He has his Dhaba near the place of occurrence. Admittedly, police reached the spot early in the morning on 18.2.1998 when the dead body was spotted. The witness did not inform the police people that he had seen the occurrence. It was only when he was called to the Police Station 2-3 days thereafter, per his own statement, that he disclosed to them that he was an eye-witness. It has also come in the evidence that there are several houses and shops in the village, surrounding the place of occurrence and the Dhaba of the witness. He did not inform the inhabitants of any of those places about the incident, not only on that very night, but even …10… thereafter, per his own deposition. His silence for too long makes his version doubtful. 17. Evidence of the prosecution with regard to the recovery of the sticks Ex. P-7 and Ex. P-9, allegedly at the instance of the appellants, is also doubtful. According to the prosecution, sticks were recovered, pursuant to the disclosure statements made by the two appellants. PW-26 Inspector Sukh Ram testified that appellant Gopal Chander made a statement, which he reduced into writing vide memo Ex. PW-3/B and that pursuant to that statement stick Ex. P-7 was recovered. He did not say what were the contents of the statement made by appellant Gopal Chander, nor did he testify as to from which place stick Ex. P-7 was recovered. As a matter of fact, he was required to have testified the exact words spoken by appellant Gopal Chander with regard to the stick, that is to say where he had kept it and also to have stated from where it was recovered. Thus, his statement cannot be used as legal evidence. Similar is the statement of the witnesses with respect of the alleged disclosure statement of the other appellant Pradeep Kumar. He simply stated that one stick Ex. P-9 was recovered, as per disclosure statement of co-accused Pradeep Kumar. This statement also does not amount to legal evidence. 18. Other witnesses of the alleged disclosure statements and recovery examined by the prosecution are PW-3 Rajesh Kumar and PW-6 Rajender Kumar. Even though, these witnesses stated that appellant Gopal Chander had made disclosure statement Ex. PW-3/B, but they too did not testify the contents of the alleged statement made by appellant Gopal Chander. Not only this, in the cross-examination …11… both of them stated that Memo. Ex. PW-3/B of the alleged disclosure statement was prepared after the recovery had been effected. 19. In view of the above discussed evidence, we have no manner of doubt that the charge against the appellants does not stand established beyond reasonable doubt. Therefore, the appeal is accepted, judgment of the trial Court is set aside and the appellants are acquitted of both the offences they have been convicted of and sentenced for. They, being in custody, are ordered to be set at liberty forthwith in case their detention is not required, in any other case. ( Surjit Singh ), J January 8, 2008(sd) ( Surinder Singh ), J