IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No.: 30 of 1999. Reserved on: 18.05.2010. Decided on 2.6.2010. ___________________________________________ State of Himachal Pradesh. … Appellant. Versus Dharmeja Ram and others. …Accused/Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 Yes. For the petitioner : Mr. Vivek Thakur, Additional Advocate General. For the Respondents : Ms. Nidhi Chawla, Advocate vice Mr. Anup Chitkara, Advocate. Per Rajiv Sharma, J.: By means of present appeal, the State has challenged the judgment rendered by learned Sessions Judge, Kangra at Dharamshala in Sessions Case No.34-P/VII of 1997, dated 24.9.1998 whereby the respondents, who were charged with and tried for having committed the offences punishable under Sections 147, 447 read with 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. - 2 - Sections 149 and 302 of Indian Penal Code, have been acquitted. 2. The case of the prosecution, in a nutshell, is that on 6.7.1997 at 8.30 p.m., accused persons came to the house of Manoj Kumar (PW-3). He was threatened by the accused persons. He raised hue and cry and thereafter Anil, Sanjay Kumar and Vijay came to his rescue. Sanjay Kumar tried to intervene. He was given a lathi blow by Sukh Ram. He fell down and thereafter Billa gave hockey blows to him. Accused pelted stones and ran away from the spot. Sanjay Kumar was taken to Primary Health Centre, Lambagaon. Thereafter he was taken to Community Health Centre, Thural, from where he was shifted to Palampur hospital and then he was shifted to Zonal Hospital, Dharamshala. He died on 8th July, 1997. F.I.R. was registered. The matter was investigated. 3. PW-1, Dr. D.P. Swami conducted the postmortem on 9th July, 1997. The prosecution examined number of witnesses. Respondents were also examined under Section 313 of the Code of Criminal Procedure. They also led defence evidence and examined DW-1, Kishori Lal. The learned trial Court after trial, acquitted the accused. 4. PW-3 is Manoj Kumar. According to him on 5th July, 1997, he had gone to his uncle’s house. He met the accused persons at about 6.30 p.m. near their house. He - 3 - was slapped by the accused. He was saved by the ladies of the village. On the next evening, i.e. 6.7.1997 at about 8.30 p.m., he was present in his house. Accused persons came in their court-yard and started abusing and called him outside the house. Sukh Ram was holding a danda in his hand and Billa had a bamboo hockey stick in his hand. He shouted for help. Thereafter, Anil, Vijay and Sanjay (deceased) came there. His mother was also present at that time. Sukh Ram gave a danda blow on the forehead of Sanjay. He became unconscious and thereafter Billa also gave a blow with hockey, he was carrying. In his cross-examination, he admitted that the faces of the accused were covered; however, he could see them in the light in the court-yard. 5. PW-4 is Suman Kumari. She was also hit by a stone. PW-5, Smt. Brahmi Devi has deposed that she was sitting in the house on 6th July, 1997 at about 8.30 p.m. Her sons, Sanjay and Manoj (PW-3) were sitting on a cot in the court-yard. Sanjay (deceased) came to her house and was talking that they will cultivate the land together with his mother. Thereafter, accused persons came and stood in front of their house. They shouted that send Manoj Kumar outside. Sanjay (deceased) told them to talk properly. They started abusing in filthy language. Stones were pelted on their house. Thereafter Sanjay was given a danda blow on his forehead by Sukh Ram. Billa also gave blows with - 4 - hockey stick to deceased Sanjay on the forehead and also on the back. Her son, Sanjay was also hit by stones. According to her, Sukh Ram made a statement in the custody of police in her presence that he had hidden the danda under a guava tree. A document was prepared to this effect vide Ex.PW- 5/A. Thereafter, he took the police to that place and got recovered the danda, Ex.P-6. The danda was taken into possession by the police vide memo Ex.PW-5/B. According to her, Billa also made a statement Ex.PW-5/C, on the basis of which, the hockey was recovered vide memo Ex.PW-5/D. In her cross-examination, she had admitted that police used to give slaps to accused and she was called to police station on the 5th day and the accused agreed to give statement. The police came with a hockey, a danda and stones and her thumb impressions were taken on all the documents at one time. She has categorically admitted in her cross- examination that the persons who had come that night did not have their faces covered, but as it was dark, they could not be identified. 6. PW-6, Dr. Sumanju Dhiman had examined Sanjay on 7th July, 1997. According to this witness, Sanjay Kumar had been referred from Thural to Palampur and from Palampur to Zonal Hospital, Dharamshala. 7. PW-9, Vijay Kumar has deposed that on 7th July, 1997, at about 8.30 p.m., he was present in his house. He - 5 - heard a noise coming from the house of Barahmi Devi. He alongwith Nitu, Bobby, Manoj and Anil came down to the house of Brahmi Devi. Light was on. His brother Sanjay was talking to the accused persons. He was being beaten by Billa, Sukh Ram, Dharmeja and his wife. He was being beaten-up by dandas. Sukh Ram had a danda in his hand. Dharmeja had also a danda in his hand and Billa had a stick in his hand. His brother sustained injuries on his forehead and chest. His statement was recorded by the police on the 16th day. In his cross-examination, he narrates that nobody tried to save Sanjay. 8. PW-10 is Surinder Kumar. According to him, on 6th July, 1997, he was present in his house at about 8.30 p.m. He heard some noise coming from the house of Brahmi Devi. He saw stones being pelted and also a fight going on. According to him, Sukh Ram, Billa, Dharmeja, Puran, Satish and Jeewan were giving beatings to Sanjay Kumar. Sukh Ram had a danda and Billa had a hockey made of bamboo with him. Sanjay suffered injuries on his forehead and chest. When they went there, accused ran away. His statement was recorded probably, as per his statement in cross-examination, on 10/12th July, 1997. 9. PW-16, Dr. B.K. Gautam had examined Sanjay Kumar in Community Health Centre, Thural on 6th July, 1997 at 10.35 p.m. PW-17, Khushi Ram deposed that the - 6 - occurrence took place on 6th July, 1997. He saw Sanjay Kumar injured being brought by 4 -5 persons. He enquired from the boys who were carrying him. They told him that there was a scuffle near the house of Brahmi Devi and he advised them to take him to Police Station, Lambagaon. 10. According to PW-1, Dr. D.P. Swami, Sanjay Kumar died of asphyxia and neurogenic shock due to ante mortem injury to brain and was sufficient in ordinary course of nature to cause death. Time elapsed between the injury and death was 6 to 48 hours and between death and postmortem around 24 hours. 11. PW-3 has deposed that when the accused came to his house, he shouted for help and thereafter Anil, Vijay, Sanjay and Surinder Kumar came there. However, as per statement of PW-5, Brahmi Devi, Sanjay Kumar was already present in the house. PW-3 has stated that he had recognized the accused persons though their faces were covered, in the light present in the court-yard. But, PW-5, Brahmi Devi has categorically admitted in her cross- examination that though the faces of the accused were not covered, she could not recognize them during night. 12. It is intriguing to note that so many persons were present on the spot, but they had not tried to save Sanjay Kumar. It is a normal human conduct to save a person who is being beaten by number of persons, as in the instant case. - 7 - Nobody has also tried to chase the accused after the beatings were given to Sanjay Kumar. Vijay Kumar, real brother of deceased has also neither intervened nor tried to chase the accused. It was admitted position that the inquest papers were sent to the Doctor, but copy of F.I.R. was not sent alongwith the same. There was no mention about the FIR in the inquest papers. In case the F.I.R. was registered on 6th July, 1997, it ought to have been mentioned in the inquest. F.I.R. was received by the Illaqua Magistrate on 19th July, 1997. This fact has been proved by DW-1, Kishori Lal. The F.I.R. was received through Dile Ram, Constable at 12.45 p.m. The motorable distance between Lambagaon and Palampur is 2-3 hours. There is no explanation why the F.I.R. was not sent to the Illaqua Magistrate on the same or the next day. PW-3, Manoj Kumar, PW-5, Brahmi Devi and PW-17 Khushi Ram have stated that Sanjay Kumar became unconscious after the receipt of blow of danda given by Sukh Ram. Their statements are contradicted by PW-16, Dr. B.K. Gautam. According to him, the patient was conscious at the time when he was brought to him on 6th July, 1997 at 10.30 p.m. It was expected from the prosecution to have recorded the statement of deceased Sanjay Kumar to ascertain the names of the assailants when he was admitted in Community Health Centre, Thural. Statement of Vijay Kumar, PW-9 under Section 161 of the Code of Criminal Procedure (Ex.DB) - 8 - was recorded by the police on 16th July, 1997. There is no explanation forthcoming why the statements were recorded so belatedly. These witnesses, PW-9 and PW-10 have made numerous improvements in their previous statements while appearing before the Court. In his previous statement recorded under Section 161 of the Code of Criminal Procedure, PW-9 Vijay Kumar has stated that he has not seen the accused beating Sanjay Kumar, however, in his statement before the Court, he stated that he saw Sanjay Kumar being beaten by the accused. Similarly, PW-10, Surinder Kumar as per his previous statement, recorded under Section 161 of the Code of Criminal Procedure has not witnessed the incident. He only saw the accused running from the spot, however, when he appeared in the Court, he stated that he saw Sukh Ram, Billa, Dharmeja, Puran, Satish and Jeewan beating Sanjay Kumar. 13. The recoveries of danda and stick made by the police are also questionable. It has come in the statement of Brahmi Devi (PW-5) that the accused were given slaps by the police in her presence in the police station. In view of this, the disclosure statements made by Sukh Ram and Billa were not voluntary in nature, but were extracted by the police during sustained interrogation. PW-5, Brahmi Devi had deposed that the police had brought hockey, danda and - 9 - stones in one go and she had signed all the documents at one place and at the same time. 14. Accordingly, in view of the observations made hereinabove and the fact that there are material contradictions and inconsistencies in the statements of the witnesses, we are of the considered view that the learned trial court was justified in acquitting the accused. Consequently, we find no merit in the appeal which is dismissed. Bail bonds furnished by the accused-respondents are ordered to be discharged. (Deepak Gupta), Judge. (Rajiv Sharma), Judge. 2.6. 2010. (sck).