IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.A No.402 of 2008 Decided on : November 23, 2009 Charanjit and others …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 Yes. For the Appellants : Mr. M.S. Chandel, Senior Advocate, with M/s Ashok Chaudhary, N.S. Chandel and Rakesh Jaswal, Advocates. For the Respondent : Mr. P.M. Negi, Deputy Advocate General, and Mr. Ramesh Thakur, Assistant Advocate General. Surjit Singh, J(Oral) Appellants Charanjit, Hardesh Kumar, Pardeep Kumar, Madan Lal and Mohan Lal, hereinafter referred to as accused, have preferred this appeal against the judgment, dated 23rd June, 2008, of learned Sessions Court, whereby they have been convicted of offences, under Sections 147, 451, 506 and 302, read with Section 149 of the Indian Penal Code, and sentenced to undergo imprisonment for life and to pay a fine of Rs.10,000/- each, in default of payment of fine to undergo simple imprisonment for a further period of one year, each, for offence under Section 302 of the Indian Penal Code; to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,000/- each, in default of payment of fine Whether reporters of the local papers may be allowed to see the judgment? …2… to undergo simple imprisonment for a further period of three months, each, for offence under Section 147 of the Indian Penal Code; to undergo rigorous imprisonment for one year and to pay a fine of Rs.2,000/- each, in default of payment of fine to undergo simple imprisonment for a further period of three months, each, for offence under Section 451 read with Section 149 of the Indian Penal Code; and to undergo rigorous imprisonment for two years and to pay a fine of Rs.2,000/- each, in default of payment of fine to undergo simple imprisonment for a further period of six months, each, for offence under Section 506, read with Section 149 of the Indian Penal Code, with the order that all the sentences shall run concurrently. 2. Case of the prosecution, as per record, is like this. Deceased Prakash Chand was employed as a Constable in Himachal Pradesh Police. He was posted at Sakoh in Second Battalion, in Kangra District. He was on leave from 7th July, 2004 onwards. On 10th July, 2004, around 10 in the morning, he had removed some fence raised by accused Mohan Lal, who is his Chacha (father’s brother). This he did with a view to raising some structure on the site of the fence. Around 10 p.m., on the same date, when deceased and his wife Reeta Devi (PW-1) were sleeping, on separate cots, in the verandah of their house, all the accused, one of whom, as already noticed, namely Mohan Lal was his Chacha, two, namely Charanjit and Hardesh Kumar, were his first cousins …3… and the remaining two, namely Pardeep Kumar and Madan Lal, were his real brothers, went to his courtyard and asked him why he had removed the fence. This led to an altercation and one of the accused, namely Charanjit, slapped the deceased twice. Then all the accused pounced upon him and fisticuffed and kicked him. When PW-1 Reeta Devi, his wife, tried to rescue him, she too was slapped on her face by accused Madan Lal. Deceased tried to run away to save himself, but he was overpowered and thrown on the ground and again kicked and fisticuffed. Accused were shouting that they would kill the deceased. When the deceased and his wife PW-1 Reeta Devi cried for help, two brothers, namely Karam Chand (PW-2) and Prakash Chand (PW-4) came out of their houses and challenged the accused, upon which the accused fled from the spot, threatening that in case the matter was reported to the police, the deceased would be got dismissed from service. The aforesaid two witnesses are nephews of accused Mohan Lal and cousins of the rest of the accused as also the deceased 3. PW-1 Reeta Devi made a telephonic call to two of her husband’s colleagues, namely Ajay Kumar (PW-5) and Pawan Kumar (PW-10), who were posted at Sakoh. She apprised them of the incident. They told her to lodge report with the police, but she expressed her inability to lodge the report, on account of the threat given by the accused that …4… they would get the deceased dismissed from service, in case report was lodged. 4. On the next following night, i.e. on the night intervening 11th and 12th, when condition of deceased Prakash Chand deteriorated, PW-1 Reeta Devi managed to take him to the Hospital at Dharamshala, in a Taxi. Deceased was admitted at 3 a.m. His condition was very serious. He was operated upon, after taking high risk consent. He was brought out from the operation theatre at 10.45 a.m. At 3.30 p.m. on 12th July, 2004, he died. During the course of surgery, it was noticed that the deceased had perforation of small intestine, measuring 2cm x 1cm. 5. Before the deceased was operated upon, PW-1 Reeta Devi, his wife, again spoke to his aforesaid two colleagues, namely PW-5 Ajay Kumar and PW-10 Pawan Kumar, seeking financial help. They collected a sum of Rs.1,000/- and sent the same to PW-1 Reeta Devi at the Hospital, through Constable Yash Pal (PW-11). They themselves also reached the Hospital around 10 a.m. After the death of Prakash Chand, both of them went to the office of Superintendent of Police and apprised the Additional Superintendent of Police of what had been conveyed to them by PW-1 Reeta Devi, the wife of deceased Prakash Chand, on telephone, on 10th July, 2004, around 11 in the night. Additional Superintendent of Police informed the concerned Deputy Superintendent of Police of the area, who, in turn, …5… informed the SHO, Police Station Haripur and the latter rushed to the village, where he recorded statement Ex. PW- 1/A of PW-1 Reeta Devi, under Section 154 of the Code of Criminal Procedure, in which all the aforesaid details find mention. 6. Case was formally registered on the basis of statement Ex. PW-1/A, vide FIR Ex. PW-7/B. Inquest was conducted by PW-12 Gulzari Lal and he prepared report on proformas Ex. PW-12/A and Ex. PW-12/B. Postmortem of the dead body was conducted by Dr. A.K. Sharma (PW-9). He gave the opinion that the cause of death was combined effect of septicaemic shock and disseminated intravascular coagulation following intestinal injury. There was perforation of small intestine, measuring 2cm x 1cm. The doctor also gave the opinion that time lag between the injury and death was 1-2 days and between death and postmortem it was 18 to 24 hours. Postmortem was conducted on 13th July, 2004, at 12 noon. 7. Statements of material witnesses were recorded, under Section 161 of the Code of Criminal Procedure. Site plan Ex. PW-13/A was prepared. On completion of investigation, report, under Section 173 of the Code of Criminal Procedure, was filed in the Court of concerned Judicial Magistrate, who, after complying with the requirement of Section 207 of the Code of Criminal Procedure, committed the case to the Sessions Court. …6… Accused were charged with the aforesaid offences and on their pleading not guilty they were tried. 8. Prosecution examined 14 witnesses, in all, to bring the charge home to the accused. They included, PW-1 Reeta Devi, the wife of the deceased, PW-2 Karam Chand and PW-4 Prakash Chand, who claimed to have witnessed the occurrence, PW-5 Ajay Kumar and PW-10 Pawan Kumar to whom PW-1 Reeta Devi, the wife of the deceased allegedly informed, telephonically, about the beating given to the deceased, soon after the incident of beating, PW-11 Constable Yash Pal, who was allegedly deputed by PW-5 Ajay Kumar and PW-10 Pawan Kumar, to carry money to the Hospital for the treatment of the deceased, PW-14 Dr. A.K. Kaundal, who provided treatment to the deceased and PW-9 Dr. A.K. Sharma, who conducted postmortem. 9. Accused denied having assaulted the deceased or being responsible for the fatal injury. They took the plea that PW-2 Karam Chand and PW-4 Prakash Chand were on inimical terms with them and because of the enmity they had made false statements. 10. PW-1 Reeta Devi, wife of the deceased, did not support the prosecution version. However, PW-2 Karam Chand and PW-4 Prakash Chand stuck to the statements, which they made during investigation and testified that they had seen the accused giving beatings to the deceased, from …7… their houses, which are close to the house of the deceased, as per their testimony. 11. PW-5 Ajay Kumar and PW-10 Pawan Kumar, the two colleagues of the deceased, also supported the prosecution story. Both of them stated that they had received a telephonic call from PW-1 Reeta Devi, on 10th July, 2004 around 11 p.m., informing that the deceased had been beaten up severely by the accused and also testified that on 12th July, 2004 they again received a call from PW-1 Reeta Devi that the deceased was to be operated upon at Dharamshala Hospital, but she was having no money and that they sent a sum of Rs.1,000/- through PW-11 Yash Pal and they also went to the Hospital around 10 a.m., on the same day. 12. Learned trial Court believed the prosecution version, relying upon the testimony of PW-2 Karam Chand, PW-4 Prakash Chand, PW-5 Ajay Kumar and PW-10 Pawan Kumar and the medical evidence, and convicted and sentenced the accused, as aforesaid. 13. We have heard the learned counsel for the accused as also the learned Assistant Advocate General and gone through the record. 14. It is submitted by the learned counsel for the accused that the trial Court has very conveniently ignored those pieces of evidence on record, which falsify the prosecution version, despite the fact that those pieces of …8… evidence are also part of the prosecution’s own evidence. He has specifically made reference to the case summary Ex. PW-8/D, proved by PW-14 Dr. A.K. Kaundal, who conducted the surgery and prepared the said report on the basis of the record. Now, as per case summary Ex. PW-8/D, the deceased, who is referred to as patient in the said case summary, disclosed that he had sustained injury in an accident of scooter. 15. We find merit in the submission. Learned trial Court has not taken into account the fact that the deceased himself, at the time of his admission to the Hospital at Dharamshala, informed the doctors that he had sustained the injury in a scooter accident. This statement by the deceased himself is a substantive piece of evidence and unless the statement is shown to be false, the same cannot be brushed aside, lightly. In the present case, the trial Court has not even made a mention of this statement of the deceased, leave alone giving any reason for not relying upon it or brushing it aside. 16. PW-1 Reeta Devi was specifically suggested in the cross-examination by the prosecution (the witness was cross-examined by the prosecution with the leave of the Court, because she did not support the prosecution version and denied that the deceased was beaten up by the appellants) that the case history was given to the doctor, at the time of the treatment of her husband in the Hospital at …9… Dharamshala by her and not by the deceased. She denied the suggestion and testified that the case history was given by the deceased himself. As already noticed, Ex. PW-8/D also records that it was the deceased who gave the case history and told that he had sustained the injuries in a scooter accident. 17. No doubt, PW-2 Karam Chand and PW-4 Prakash Chand, both brothers, who are first cousins of the accused and the deceased, did say that on hearing the cries of the deceased and his wife, when they looked towards the house of the deceased from their own houses they saw the accused fisticuffing and kicking the deceased in his courtyard, but both of them are on inimical terms with the accused, as both sides, i.e. the witnesses, on one side, and the accused, on the other, have instituted several criminal cases through the police against each other, as per their own admission in the cross-examination by the defence. 18. Not only this, PW-2 Karam Chand stated that his house is at a distance of only 3½ metres from the place of occurrence. His statement is falsified by PW-4 Prakash Chand, his brother, according to whom the distance is 18-19 metres. It is nobody’s case that there was light in the courtyard/verandah of the deceased, when the incident took place. In the absence of such evidence, it cannot be presumed that light was there. Now, if there was no light in the verandah, at the relevant time, probably the two …10… witnesses could not have been in a position to see in the verandah from their houses, which, per testimony of PW-4 Prakash Chand, are situated at a distance of 18-19 metres from the spot, because it was supposed to be quite dark at that time. 19. Conduct of the two witnesses also renders their testimony doubtful. Both of them have stated that the deceased had been badly beaten up by the accused, but despite that they did not go to his house to find out if he had sustained any serious injury and required medical treatment nor did they lodge any report with the police. They became active only after the death of the deceased, cause of which, per deceased’s own statement, which he made to the doctors at the time of his admission, was a scooter accident. 20. Medical evidence also does not corroborate the testimony of PW-2 Karam Chand and PW-4 Prakash Chand. Deceased was treated by PW-14 Dr. A.K. Kaundal. He found no external injury. No doubt, the witness stated that abdomen being flexible there could not have been any external injury on it, but the case of the prosecution is that the deceased was dealt several kick and fist blows, with full force, not only in the abdomen but also on the chest and the testimony of PW-14 Dr. A.K. Kaundal as also the testimony of PW-9 Dr. A.K. Sharma, who conducted the postmortem, suggest that there was no external injury, even on the chest. As a matter of fact, there was only one internal injury, which …11… was in the nature of perforation, measuring 2cm x 1cm, of small intestine, which caused septicaemic shock, resulting in death. 21. Of course, there does not seem to be any apparent reason to disbelieve the testimony of PW-5 Ajay Kumar and PW-10 Pawan Kumar, the two colleagues of the deceased, that they had been informed by PW-1 Reeta Devi, on 10th July, 2004 at 11 in the night, that her husband had been beaten up by the accused, but when PW-1 Reeta Devi herself denies having spoken to these two witnesses, on telephone, on that day and also denies the occurrence, the same cannot be made the basis of conviction, unless corroborated. Also, we find that their conduct was unnatural. No doubt, the witnesses have stated that when they told PW-1 Reeta Devi to lodge report with the police, the latter said that the accused have threatened to get the deceased dismissed from service, in case report was lodged with the police, but they themselves were under no threat and they being police officials ought to have reported the matter atleast to the Commanding Officer of the deceased, if not to the concerned Police Station having jurisdiction over the area or the Superintendent of Police of the District. Also, they did not even visit the deceased on getting the information that he had been beaten up and that too very severely. …12… 22. Testimony of PW-5 Ajay Kumar and PW-10 Pawan Kumar that on 12th July, 2004, after the death of the deceased they went to the Additional Superintendent of Police and apprised him of the occurrence, as disclosed to them by the wife of the deceased, is not corroborated by the record maintained by the police. We find on record an entry in the Rojnamcha of Police Station, Haripur. The number of the entry is 21, its time is 5.30 p.m. and is dated 12th July, 2004. Its copy is Ex. PW-7/A. As per this entry, SHO of the Police Station was informed by the Deputy Superintendent of Police, Dehra, that the deceased had died under mysterious circumstances. There is no reference in this entry that the deceased had died because of having been beaten up by the accused. Now, had PW-5 Ajay Kumar and PW-10 Pawan Kumar, in fact, narrated to the Additional Superintendent of Police that the deceased had been fisticuffed and kicked by the accused, this fact must have been conveyed to the Deputy Superintendent of Police, Dehra by the Additional Superintendent of Police and the former must have intimated the same to SHO, Police Station Haripur, who recorded entry Ex. PW-7/A. 23. Deceased was a trained commando, per evidence on record. He was physically very stout and strong, per mention in the postmortem report. It could not have been very easy for the accused to give him beating, without sustaining any injury at his hands. Also, he being a trained …13… commando could have very easily escaped, especially when prosecution’s own story that before the assault there had been a wordy duel between the deceased and the accused, indicating that he was awake and, hence, not an easy prey. 24. In view of the abovestated position, we are of the considered view that the prosecution case does not stand established, beyond reasonable doubt. Hence, the appeal is accepted, judgment of the trial Court, convicting and sentencing the accused, is set aside and they are acquitted. They being in jail, serving out the sentence awarded by the trial Court, are ordered to be set at liberty forthwith, in case their detention is not required in any other case. Release warrants be prepared accordingly. Appeal stands disposed of. ( Surjit Singh ), J November 23, 2009(sd) ( Surinder Singh ), J