IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No. 403 of 1997 alongwith Cr.Appeal No.105 of 2000. Reserved On: 21.10.2010 Decided on: 7.1.2011 Cr.Appeal No.403 of 1997 Vijay Singh and ors. …..Appellants. VERSUS State of H.P …..Respondent. Cr.Appeal No.105 of 2000 State of H.P. …….Appellant VERSUS Vijay Singh and ors. ……..Respondents Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 No Cr.Appeal No.403 of 1997 For the Appellants: Sh.K.S.Banyal, Advocate. For the Respondent: Sh.Vivek Singh Thakur, Additional Advocate General. 1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes …2… Cr.Appeal No.105 of 2000 For the Appellant: Sh.Vivek Singh Thakur, Additional Advocate General. For the Respondents: Mr.Ramakant Sharma, Advocate and Mr.Ashok Chaudhary, Advocate. Deepak Gupta,Judge These two appeals are being disposed of by a common judgment since they both arise out of the judgement dated 4.9.1997 delivered by the Learned Sessions Judge, Hamirpur in Sessions Trial No.3 of 1996 whereby he found the accused Vijay Kumar guilty of having committed an offence punishable under Section 304, Part-II, IPC. The remaining three accused namely Kamleshwar, Pawan Kumar and Rajinder Singh were convicted for having committed an offence punishable under Section 323 of the Indian Penal Code. Thereafter, accused No.1, Vijay Kumar was sentenced to undergo simple imprisonment for three years and to pay a fine of Rs.7000/- and in default of payment of fine, the accused was directed to undergo further simple imprisonment for six months. The remaining three accused were sentenced to undergo simple imprisonment for one year each and to pay a fine of Rs.1000/- each and in case of default of payment of fine, they were directed to …3… undergo further simple imprisonment for one month. Appeal No.403 of 1997 has been filed by the accused challenging their conviction and sentence. Appeal No.105 of 2000 has been filed by the State and it is prayed that the accused should be convicted of having committed an offence punishable under Section 302, IPC. 2. The prosecution story, in brief, is that on 3.3.1995, a ‘Barat’ of one Surinder Kumar, son of Bidhi Chand of village Farnol went to the bride’s village Agwin. The deceased, Bimal Kumar and PW/2 to PW/4 namely Sunil Kumar, Vinod Kumar and Ashwani Kumar respectively were the members of the ‘Barat’. The ‘Barat’ reached village Agwin at about 7.30 to 8.00 p.m. Thereafter, the tea was served to the members of the ‘Barat’ by the family members and friends of the bride. Among the persons doing the service were the four accused. 3. It is alleged that some verbal altercation took place between Bimal Kumar (deceased) and the accused No.1, Vijay Kumar on the ground that Bimal Kumar was speaking in English. This matter was however, settled at the intervention of Vinod Kumar, PW/3 and Ashwani Kumar, PW/4. Thereafter, dinner was served to …4… the members of the ‘Barat’ at the bride’s place. Then the members of the Barat returned to the ‘Dera’ where the arrangements had been made for their stay. The deceased, Bimal Kumar and PW/2 to PW/4 were sitting around the fire when at about 10.30 p.m., all the accused persons accompanied by one other boy whose name was later revealed to be Suresh Kumar came to the spot. They told the deceased and PWs 2 to 4 that the arrangements for their stay at night had been made in the house of one Rattan Chand in village Kot. Therefore, these four persons accompanied the accused and Suresh Kumar alongwith some elderly persons and children who were also the members of the ‘Barat’ for going to village Kot. Suresh Kumar was leading this party with the help of a torch. The elderly persons and the children were ahead. The deceased and PW/2 to PW/4 were following the other members of the Barat and the accused were just behind them. It is alleged that when this party was near village Kot, Bimal Kumar stated that they had been brought too far from the ‘Dera’ and since he had to attend the ‘Lagan ceremony’ and return home early next morning, he and his friends would return to the ‘Dera’ and sleep there. According to the prosecution, …5… on this, Vijay Kumar, accused got angry and retorted that they (accused) were not the servants of the father of Bimal Kumar. Bimal Kumar and the three witnesses (Pw/2 to PW/4) started returning to the Dera. The accused followed them and at about 11.30 p.m., when they reached the road, all of a sudden, Vijay Kumar. accused attacked the deceased. Vijay Kumar and Pawan Kumar, accused were armed with ‘dandas’. In the meantime, Kamleshwar, Pawan Kumar and Rajinder Singh started giving beatings to the deceased and to PW/2 to PW/4. Despite cries by all the injured, none came to the spot. Thereafter, Bimal Kumar fell on the road and the accused persons fled away from the spot. 4. Thereafter, Bimal Kumar was lifted by PW/2 to PW/4 and was taken to the Dera. There was a van already parked at the Dera. Bimal Kumar was put in the van by Vinod Kumar (PW/3) and Ashwani Kumar (PW/4) whereas Sunil Kumar, complainant remained behind at the Dera. Next morning, Sunil Kumar came to know that Bimal Kumar had expired. The father of Bimal Kumar was also a member of the wedding party but he could not be informed about the occurrence by PW/2, Sunil Kumar since he was sleeping at some other place. It is also …6… alleged that PW/2 to PW/4 suffered injuries in the occurrence. 5. Bimal Kumar was initially taken to PW/11 Dr.Sushil Kumar for treatment at Salauni. He was unconscious and was given first aid there. Thereafter, Bimal Kumar was taken to the house of PW/3, Vinod Kumar in village Farnol. The persons accompanying Bimal Kumar expected that he would regain consciousness. Bimal Kumar however, started vomiting there. Thereafter, his mother Smt.Lajwanti, PW/12 was informed and she also came to the house of Vinod Kumar. Then he was taken to Hamirpur for treatment in a truck but unfortunately expired at Hamirpur. 6. A telephonic report was made to the police at Hamirpur by the doctor on duty in District Hospital, Hamirpur vide DDR Ext.PV dated 4.3.1995 at 9.00 a.m. Thereafter, PW/16 S.I Mehar Chand went to the hospital and carried out the inquest report. The dead body of the deceased was photographed and sent for post mortem examination. Since the occurrence had taken place within the jurisdiction of Police Station, Barsar, all the documents of the case were forwarded by PW/16 to Police Station, Barsar for further action in the matter in …7… accordance with law. According to the prosecution, in the meantime, information about the occurrence had also been received at P.S., Barsar through a wireless message, Ext.PZ. PW/22 Sh.Narain Dutt was posted as SHO, P.S., Barsar at that time. He was however not available at the Police Station when the information was received. This information was conveyed to him on telephone. He then proceeded to the spot and recorded the statement of PW/2, Sunil Kumar under Section 154, Cr.PC and sent the same to the Police Station for registration of the case. On the basis of this statement, FIR, Ext.PAB, was recorded. 7. According to the Dr.H.S.Shekhon, PW/1 who conducted the post mortem on the body of the deceased, he had died as a result of ante-mortem head injury. PWs/2 to 4 were also sent for medical examination. It is further alleged that the disclosure statements were made by the accused. After completion of the investigation, the challan was filed against the accused persons and the accused were charged with having committed the aforesaid offences. After trial, they have been convicted as aforesaid. Hence the present appeals. …8… 8. There is no manner of doubt that the deceased, Bimal Kumar died as a result of ante-mortem head injuries. The star witnesses in this case are PWs 2 to 4 whose version is almost identical. According to them, when they were near village Kot, Bimal Kumar, deceased insisted that they would go back and stay at the Dera. When they were returning to the Dera, Vijay Kumar attacked Bimal Kumar with a ‘Lathi’ whereas the other three accused started beating the witnesses with lathis, kicks and fist blows. Bimal Kumar fell down and the accused left. Bimal Kumar was brought to the Dera and was then brought by PW/3 and PW/4 to the doctor. In the morning, PW/2 came to know that Bimal Kumar had died. In cross-examination, PW/2 stated that he did not know the four accused persons prior to the occurrence and the names of the four accused were revealed to him by the police. He also stated that the accused had themselves revealed the names of their fathers and their respective addresses to the police when they were arrested in village Agwin. According to this witness, the names and parentage of the accused were mentioned in his statement, Ext.PD as he had come to know about the same when the accused themselves revealed the …9… same to the police. This witness also stated in cross- examination that the accused had given beatings to them for 15 to 20 minutes. A number of Lathi blows were given by the accused to him and the other witnesses. A suggestion has been put to all the witnesses that the deceased and these three witnesses were taking liquor and during this drinking session, a quarrel took place between the deceased and these three witnesses and thereafter, in a drunken brawl, the accused suffered injury by fall. 9. The statement of Vinod Kumar, PW/3 is almost identical. He also stated that he received injuries. According to him, from the Dera, they took Bimal Kumar to Salauni for treatment by a private medical practitioner who administered first aid to Bimal Kumar and then advised them to take Bimal Kumar home since he needed rest. Thereafter, Bimal Kumar did not regain consciousness. Thereafter, his mother was informed and then Bimal Kumar was taken to the District Hospital, Hamirpur for treatment in a truck. This witness also stated that he did not know the accused earlier and did not know their names; their parentage and their addresses. According to him, beatings were given to Bimal Kumar …10… and the three witnesses for about 10 minutes but he could not state how many danda blows were given and on which part of the body. 10. The statement of Ashwani Kumar, PW/4 is virtually identical to the statement of PW/3 and this witness also admitted that the names of the accused or their parentage were not known to him and the accused themselves had told the same to the police. 11. PW/5 Dr.Mohinder Singh examined PW/2 to PW/4. He found two injuries on the person of PW/2, three injuries on the person of PW/3 and two injuries on the person of PW/4. All these injuries are only bruises/abrasions and no serious injury was found on the person of any of the three witnesses. It would be pertinent to mention here that these persons were examined at about 11.00 p.m. on 4.3.1995, the next day. 12. PW/8 Bhagat Ram is a witness to the disclosure statement, Ext.PP allegedly made by Vijay Kumar, accused which led to the recovery of ‘dandas’. He is also a witness to the similar disclosure statement, Ext.P/2 made by accused Pawan Kumar. His presence in the Police Station itself is doubtful since according to him, he was neither called to the Police Station nor had any work …11… there but had just gone to the Police Station since he was familiar with the police officials. This witness stated that accused Vijay Kumar is not in the Court. Thereafter, a court question was put to him as to how he has stated that Vijay Kumar is not present in Court and then this witness stated that he would only identify Pawan Kumar, accused but not accused Vijay Kumar since the person who made the disclosure statement before the police was not present in Court. 13. PW/9, Bihari Lal is a witness to the recovery of the dandas by Vijay Kumar and Pawan Kumar, accused. The recoveries were made at a distance of 15 kms. from the residence of this witness. He also stated that he was not called to the Police Station and had just gone there to inquire about the case. According to him, the disclosure statements were made by the accused in his presence. 14. PW/10 is Suresh Kumar and according to the prosecution, he was the person who led the wedding party from the Dera to village Kot. He stated that about 7-8 Baratis had agreed to go to his house. However, only 2/3 elderly baratis actually went to his house and the other baratis returned to the Dera after they had covered …12… some distance. He was declared hostile and cross- examined by the prosecution. This witness stated that some young baratis had also accompanied them and these young baratis had returned to the Dera. According to him, he did not know the names of these baratis. This witness stated that he was beaten by the police and forced to name them. In cross-examination, this witness stated that the distance between his house and the main Dera where the Barat was staying is only 50 to 60 meters. According to him, nothing happened in his presence. 15. PW/11 Dr.Sushil Kumar is a registered medical practitioner. According to him, on the night intervening 3.3.1995 and 4.3.1995, Bimal Kumar was brought to his clinic in a van. He gave first aid to him and he also treated Vinod Kumar who had an injury on his eye. According to him, he could not inform the police during the night for want of requisite facilities such as telephone. However, he stated that he had asked the companions of Bimal Kumar to inform the police. He brought his treatment register and an abstract of the same is Ext.PT. In this document, it is mentioned that Bimal Kumar has been referred to the hospital at Hamirpur. He admitted that village Farnol does not fall on the way from Salauni …13… to Hamirpur. According to him, other than Bimal Kumar and Vinod Kumar, none of the other persons were injured. 16. Statements of PW/12, 13, 14 and 15 are not very relevant. 17. According to PW/16 Mehar Chand, S.I, Police Station, Hamirpur, he received a telephonic message at 9.00 a.m. on 4.3.1995 from doctor Swatantar Kumar, District Hospital, Hamirpur and immediately went to the hospital. There he had carried out the inquest proceedings vide report Ext.PW. In this report, it is mentioned that it appears that some fight had taken place. According to him, none had revealed to him during inquest proceedings that the deceased had been murdered. 18. PW/17 Rakesh Chand stated that he at the relevant time was working in the Police Station, Barsar where a wireless message was received and recorded as Ext.PZ. In this message, it was stated that a Barat had come to village Agwin and a quarrel had taken place and in this quarrel, Bimal Kumar had died. He then informed the SHO, Narain Dutt telephonically and sent two constables to the spot scene to guard the same. …14… 19. PW/22 Narain Dutt is the Investigating Officer. According to him, when he received information about the occurrence from M.H.C. on telephone, he immediately proceeded to the spot where he recorded the statement of Sunil Kumar, PW/2 under Section 154, Cr.PC (Ext.PD). This statement was sent to the police station for registration of the case. He inspected the spot and prepared the site plan, Ext.PAD. He thereafter, recovered some pieces of the glass cover of a wrist watch, vest etc. According to him, thereafter, he sent the prosecution witnesses namely Vinod Kumar, Ashwani Kumar and Sunil Kumar for medical examination and then interrogated the accused. He thereafter, arrested the accused and also recorded the statements of the witnesses under Section 161, Cr.PC. In cross-examination, he denied the suggestion that A.S.I. Nain Singh had already recorded the statement of PW Sunil Kumar under Section 154, Cr.PC. According to this witness, he reached the spot at about 2.00 p.m. and then recorded the statement. He admitted that no test identification parade was conducted to get the accused identified. His version is that the witnesses had identified the accused at the spot. He also admitted that during the …15… course of evidence, he had not collected any evidence to show that the persons who had taken the Baratis to the place where arrangement for their stay at night was made were having dandas in their hands. 20. This is the entire relevant evidence in the case. From the evidence on record, it stands proved that a wedding party had gone from village Farnol to village Agwin and the deceased, Bimal Kumar and PW/s 2 to 4 were the members of the wedding party. It has also been proved that arrangements for serving tea to the Baratis were made at village Agwin and that some altercation took place between the deceased and some of the accused. It has also proved on record that at about 10.30 p.m., some of the Baratis were asked to come from the Dera and go to village Kot for their night stay and amongst them were the deceased and PW/2 to 4. The allegation of the prosecution is that the deceased Bimal Kumar wanted to come back to the Dera and because of this reason, some altercation took place between the deceased and the accused. 21. The learned Trial Court convicted the accused relying upon the statements of PW/2 to 4. The main defence raised is with regard to the identity of the …16… accused. No doubt, the accused have been identified by PW/2 to 4 in Court. However, the fact is that admittedly the accused were not known to the members of the complainant party earlier. It is also apparent from the record that the occurrence took place late at night when it was totally dark. No doubt, PW/2 to 4 had ample opportunity to see all the accused at the Dera at the time when tea was being served to the baratis and also when the accused accompanied the complainant party alongwith some baratis from the Dera to village Kot. This is where the dispute arises. As per the evidence of PW2 to 4, they at the instance of Bimal Kumar decided to return to the Dera and thereafter, they came back in the dark. According to the witnesses, the accused were following them from behind and then Vijay Kumar, accused who was armed with a ‘danda’ attacked the deceased Bimal Kumar. When the witnesses tried to save him, accused Vijay Kumar gave danda blows to these witnesses. According to PW/2, only Vijay Kumar and Pawan Kumar, accused were armed with lathis and accused Kamleshwar and Rattan Singh gave kicks and fist blows to them. According to PW/2 it is Vijay Kumar, accused who attacked Bimal Kumar with lathi. …17… 22. The version of PW/3 is different. According to him, when they were returning to the Dera, all of a sudden, accused Vijay Kumar and the remaining co- accused pounced upon them and started beating them with dandas, kicks and fist blows and accused Pawan Kumar and Vijay Kumar were armed with dandas. According to this witness, Vijay Kumar, accused gave the first blow to Bimal Kumar with a lathi but almost simultaneously, remaining accused started beating the witnesses. 23. The version of PW/4 is that Vijay Kumar, accused attacked Bimal Kumar and when the witnesses tried to save Bimal Kumar, Vijay Kumar gave danda blow to this witness also and according to him, all the four accused were armed with dandas. 24. There is some conflict in the statements of these witnesses. All of them ascribed the first blow of Vijay Kumar, accused but thereafter, their version does not tally with each other. According to these witnesses, the fight took place for 10-15 minutes but if the medical examination is seen, there were only three external injuries on the person of the deceased, i.e., (i) a contusion over the upper eye lid, (ii) abrasions with contusions over the …18… head and (iii) an abrasion on the left forearm. The cause of death was the fracture of the right parietal bone. 25. PW/5 had examined the witnesses and he had found very minor injuries on the person of these witnesses. If the fight took place for 10 to 15 minutes, as stated by these witnesses, then both the sides would have received more injuries. 26. Another aspect of the matter is that after the incident took place, Bimal Kumar was brought back to the Dera. Even his father who was also a member of the Barat was not informed about the injuries suffered by his son and the injured, Bimal Kumar was straight away taken to PW/11 at Salauni for treatment. If the incident had occurred in the manner as stated by PW/2 to 4, they would have immediately, on coming back to the Dera, informed the father of Bimal Kumar about this fact. They did not do so. There is no explanation about this lapse. 27. The accused was then taken to PW/11 Dr.Sushil Kumar. In case the occurrence had taken place in the manner in which it is now being put forth by the prosecution then PW/11 would have been informed by the persons accompanying Bimal Kumar especially PW/3 Vinod Kumar that they had been beaten up by the …19… members of the bride’s party. There is no such mention in Ext.PT, copy of the register maintained by this doctor. An abstract of this Register clearly shows that there is no reference in this document to any quarrel having taken place between the parties. This again lends credence to the defence version that the story against the accused has been concocted at a later stage. Even the names of the accused were not disclosed to PW/11 or even to PW/12 mother of Bimal Kumar when she was informed about Bimal Kumar being unwell. Another lacunae in the prosecution version is that according to PW/11, he treated Bimal Kumar at about 12/12.30 at night and thereafter, the injured was taken to his native village Farnol but even his mother was not informed till 7’O clock next morning. 28. PW/10 Suresh Kumar has not supported the prosecution version. According to this witness, the distance between his house and the main Dera of the Barat is only 50 to 60 meters. If that be true then there is no truth in the entire story itself. No evidence has been produced by the prosecution to show that when Bimal Kumar was brought back to the Dera, anybody was informed that the persons belonging to the bride side had …20… beaten up the Baratis. This casts a doubt on the prosecution story because if the Baratis had been beaten up by the bride’s side, a hue and cry would have been raised. 29. Even PW/13 stated that he was a member of the group which was going from the Dera to village Kot. This witness stated that only on the next day, he came to know that a quarrel had taken place and did not give the names of the persons who were involved in the quarrel. In case the fight had taken place soon after the Baratis separated this witness would have heard the cries of the injured. 30. PW/14 father of the deceased, Bimal Kumar stated that he went to sleep at about 10 p.m. and only next morning when he was searching for Bimal Kumar, he came to know that Bimal had sustained injuries in a quarrel, the previous night. He later came to know at District Hospital, Hamirpur that Bimal Kumar had already succumbed to his injuries. He