HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.117 of 2002 Decided on: June, 16, 2011. State of H.P. …Appellant. VERSUS Rajput Rai & ors ….Respondent Coram The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 For the Appellant: Mr.R.K.Sharma, Sr.Addl.A.G For the respondent: Pt. Om Parkash, Advocate. Sanjay Karol, Judge: For an offence, which is alleged to have been committed on 23.2.1997, accused was put to trial. In terms of judgment dated 13.8.2001 passed by Additional Sessions Judge, Una, H.P. in Sessions Case No.17/2001/99, titled as State of HP Vs. Rajpat Rai & others, accused persons stand acquitted of the charged offence. 2. It is the case of the prosecution that on 4.1.1997, Amrit Lal (PW-3) had taken Tractor No. HP 19-1373, owned by Pardeep Kumar, for the purposes of loading Safeda wood, owned by Sh. Avtar Singh (PW-1), to village Panjawar. PW-1 is the brother-in-law of Pardeep Kumar. The Tractor could not be loaded for the reason that some people from the Gagret truck union had come at the spot and Whether the reporters of the local papers maybe allowed to see the judgment? …2… resisted the same. They asked PW-3 to drive the tractor towards Gagret, where the office of truck union is situated. Truck belonging to the union was driven behind the tractor. On way to village Keori, Amrit Lal (PW-3) met Pardeep Kumar (PW-4) and asked him to inform Avtar Singh (PW-1) that the tractor was being taken to the office of the truck union at Gagret. PW-4, in turn, informed PW-1 about the same. PW-1 accompanied by his brothers Ashwani and Sanjeev Kumar came on a motorcycle and intercepted the tractor. They got the truck stopped and enquired about the matter from the persons sitting inside. After some time, Avtar Singh sat on the tractor and asked Amrit Lal to take the same to the village. In the meanwhile, persons sitting in the truck dragged Avtar Singh from the tractor and Avtar Singh asked Amrit Lal to take the tractor towards Panjawar. When Subhdarshan (deceased) father of Avtar Singh, (PW-1) learnt about the incident, he along with Sarabjit Singh (PW- 2), Gurdian Singh also proceeded towards Gagret. On way, they found truck No. HIU 2369 at village Keori parked on the road. Subhdarshan parked his scooter in front of the truck and Sarabjit Singh with whom Gurdian Singh was sitting parked the scooter behind the truck. Both Sarabjit Singh and Avtar Singh heard Ashwani Kumar sitting in the truck, ask its driver to run over Subhdarshan Singh sitting on the scooter parked in front of the truck. Sanjay Kumar, Harsh Kumar and Raj Kumar also repeated the same. Accordingly, accused Rajpat Rai drove the truck and ran over the scooter as a result of which Subhdarshan Singh sustained serious …3… injuries. He was taken to the hospital by Sarabjit Singh (PW-2) and Avtar Singh (PW-1) where he succumbed to the injuries the very same day. The matter was reported to the police by Avtar Singh on the next morning i.e. 5.1.1997 when police recorded his statement (Ext PA) on the basis of which FIR No.13/97 (Ext PN) dated 5.1.1997 under sections 147/302/149 IPC was registered at Police station, Gagret. Chatter Singh (PW-13) who was posted as SHO, investigated the matter. The vehicles were impounded. Postmortem of the dead body was got conducted through Dr. V.K. Raizada (PW-10) who gave his report (Ext PL). Inquest report (Ext PB) was prepared. Report of the Chemical examiner (Ext PM) also obtained. The statement of the witnesses, present at the spot, were recorded. With the completion of investigation challan was presented in the court for trial. 3. The accused were charged for having committed offences punishable under Sections 147, 302 read with Section 149 of Indian Penal Code, to which they did not plead guilty and claimed trial. 4. In order to prove its case, prosecution examined 13 witnesses and the statements of the accused under Section 313 of Code of Criminal Procedure were also recorded. Accused took a defence that the scooter driven by the deceased had met with an accident with the truck which in fact was being driven by Ram Pal. At that time accused Sanjeev Kumar and Raj Kumar were also sitting in the truck. The deceased could not control the speed of the scooter and …4… collided with the truck being driven at a slow speed. The accident occurred due to the rash and negligent acts of the deceased. 5. The court below acquitted the accused, hence the present appeal. Out of 13 prosecution witnesses, testimony of Avtar Singh (PW-1), Sarabjit Singh (PW-2), Amrit Lal (PW-3) and Pardeep Kumar (PW-4) is relevant for ascertaining the guilt of the accused in relation to the charged offences. The remaining witnesses are either police officials, doctors or official witnesses who have proved the injuries sustained by Sanjay Kumar; postmortem conducted on the dead body of Subhdarshan Singh, registration of FIR and further investigation carried out by the Investigating agencies. 6. The fact that Subhdarshan Singh died is not in dispute. Postmortem report (Ext PL) and testimony of Dr. V.K. Raizada (PW- 10) establishes the fact that he died on account of pelvic fracture, intro abdominal bleeding leading to hemorrhagic shock and death. 7. In the instant case, it has come on record from the testimonies of PW-1 and PW-2 that the incident took place on 4.1.1997 at about 6-7 PM. According to PW-1, deceased already stood admitted in the District Hospital, Una at about 8.00 PM. As per the medical evidence on record, death took place the very same day at about 11.20 PM and yet the incident was not reported to the police by anyone till the time of registration of FIR on 5.1.1997 and that too at about 11 AM. Undisputedly, as has also come in the testimony of PW-1, police station was just at a distance of one Km from the place of the occurrence of the crime and yet the matter was not reported by …5… the complainant and his family members promptly. On FIR (Ext PN), there is an endorsement that the same was received by the concerned Magistrate only on 6.1.1997. The delay on the part of the complainant and the police is unexplainable. Possibility of due deliberation before getting the FIR registered or the same being antedated cannot be ruled out. 8. According to the prosecution, PW-1 and PW-2 had heard accused Ashwani Kumar, ask accused Rajpat Rai, who allegedly was on the driver seat, to run the truck over the scooter driven by Subhdarshan Singh. This was also repeated by the other accused persons, i.e. Harsh, Raj Kumar and Sanjay Kumar. Now version of PW-1 and PW-2 that the truck was being driven by accused No.1 Rajpat Rai, stands materially contradicted by the contents of the FIR, with which they were confronted, wherein it is specifically recorded by PW-1 himself that the same was being driven by Rampal. In the FIR, even the presence of Rajpat Rai is not disclosed. This material contradiction renders the prosecution version to be extremely doubtful if not falsified. 9. Not only that, PW-2 categorically states that amongst the accused persons present in the truck, he only knew accused Ashwani Kumar from before. He categorically states that prior to the date of the alleged incident he had not known the other accused persons. He admits that police did not carry out any identification parade. He also admits that names of the accused persons were not disclosed by the police to him. He also admits that …6… except for the name of Ashwani Kumar he had not disclosed the names of the other accused persons to the police. It is not the case of PW-1 that he had disclosed the names of the accused to PW-2. Now, if PW-2 was not knowing all of the accused persons from before then obviously his version in Court, that he had seen and heard them ask the driver to run the truck over the deceased is an afterthought and untrue. 10. PW-2 cannot be considered to be a reliable witnesses for the reason that he has made several improvements. He admits that his statement was recorded by the police only on 10.1.1997 in the Police station at Gagret. Now, this version of his, stands materially contradicted by PW-3 and PW-4, according to whom, statements of the witnesses, including that of Sarabjit Singh were recorded by the Police on 5.1.1997 and not on 10.1.1997. Prosecution has not placed on record such statements which were recorded on 5.1.1997. Why so? has not been explained. Be that as it may be, PW-2 admits that his earlier version that the deceased had parked the scooter in front of the truck; that Ashwani had asked the driver to run the truck over the deceased; other persons present at the spot gave beatings to the accused is not there in his statement (Ext DA) recorded by the Police with which he was confronted. Thus, considering the contradictions improbabilities and improvements made by this witness, his version that he had heard accused Ashwani Kumar ask the driver to run the truck over the deceased does not inspire confidence. This witness, to our mind, appears to have been …7… introduced subsequently and was not present at the spot. In Court, he specifically denies that between 4.1.1997 and 10.1.1997 he had gone to the Police station, Una or Gagret to narrate the incident which version stands materially controverted by PW-3 and PW-4. In Court, he states that the truck was being driven by Bulla @ Rajpat Rai, which version stands contradicted by the contents of the FIR. Thus, he also does not appear to be truthful witness. Significantly, prosecution has not examined Gurdian Singh on whose scooter this witness allegedly went to the spot. His examination would have only thrown light on true and complete events which transpired at the spot. 11. With regard to testimony of PW-1, we feel that even this witness is not trustworthy and reliable. His testimony does not inspire confidence. There are material and major contradictions improbabilities and unexplained missing links in his deposition. 12. To begin with, in Court he names a totally different person who was driving the truck at the relevant time. That apart, his conduct of not getting the matter reported to the police at the earliest is unexplainable. We have earlier discussed about the same. This witness has made several improvements from his statement (Ex PA) recorded by the police with which he was confronted with. He admits his version that Pardeep Kumar (PW-4) had told him that the tractor was stopped in Keori Bazar; that the accused had threatened the driver of the tractor to take the vehicle towards Gagret; that all the accused persons were actually sitting in the truck; that he had sold his wood at Hoshiarpur; that accused tried to flee on the motor cycle …8… towards Panjawar side; that accused Harsh, Raj Kumar and Sanjay Kumar had asked the driver to run over the truck over the deceased, were not so recorded therein. His earlier version in support of the prosecution case is thus rendered doubtful. That apart, this witness admits that many people had gathered on the spot at the relevant time. Significantly, prosecution has not associated anyone of the independent persons present at the spot, who even according to the prosecution had given beatings to accused Sanjay Kumar. Now why were they not associated has not been explained. Most importantly even Sanjeev and Ashwani with whom he allegedly visited the spot have not been examined in Court. They were relevant witnesses. They had witnessed the occurrence of the incident. They had allegedly seen the accused give beatings to PW-1 which in fact was the genesis of the instant crime. These witnesses would have definitely thrown light about the exact sequence of events which took place on the spot. There is no explanation for their non examination. That apart, version of this witness that the accused had stopped Amrit Lal (PW-3) from loading the logs of wood in the tractor does not inspire confidence. This witness could not establish the ownership of the logs. The owner of the tractor has not been examined in Court to establish that the vehicle had actually been engaged for the purposes of loading the wood in village Keori. The dispute could be for some other reason also. 13. Version of PW-3, to our mind, does not inspire confidence in this regard also. No doubt in his examination-in-chief he supports …9… the prosecution case. But however, careful scrutiny of his cross examination would only show that he is not a truthful witness and that he was introduced only later on. He does not remember the name of the person to whom he had sold the wood at Hoshiarpur. He also does not remember the price at which the same was sold. Significantly, if his version that PW-1 was dragged by the accused was true, then why did he leave PW-1 alone in a defenceless situation and take the tractor with the wood to Hoshiarpur, a far off place, without its owner. This witness further states that the police had recorded the statements of the witnesses on 5.1.1997. Significantly, trial Court has observed that the statements placed on the record are dated 10.1.1997 and not 5.1.1997.According to this witness (PW-3) his statement Ext DB was also recorded on 5.1.1997, whereas the Court has observed that it is dated 10.1.1997. This witness has also made significant improvements in court. His deposition that Avtar Singh and his brothers came on the motercycle and Avtar Singh was dragged from the tractor is not recorded in Ext DB. 14. In this view of the matter, it cannot be said that prosecution has been able to prove the charged offences beyond reasonable doubt, by leading clear, cogent, convincing and reliable evidence. 15. No doubt, accused has admitted that accident took place between the scooter driven by the deceased and the truck driven by Rampal. This aspect of the matter has not been examined …10… by the Police. Police has not investigated the matter with respect to the complicity of Rampal. Be that as it may be, presence of accused Sanjeev Kumar and Raj Kumar does not advance the prosecution case inasmuch as it is for the prosecution to prove the presence of all the accused at the spot and show their complicity to the charged offence. Police has to prove that they had asked accused No.1 to run the vehicle over Subhdarshan Singh. Prosecution has to stand its own legs to prove its case beyond reasonable doubt by leading clear, convincing, cogent and reliable evidence. 16. The accused have had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down in Mohammed Ankoos and ors Vs. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the persons has resulted into travesty of justice. No ground of interference is called for. The present appeal is dismissed. (R.B.Misra), J. June 16, 2011. (Sanjay Karol), J. (sl)