IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Criminal Appeal No.435 of 2002. Judgment reserved on : 29.4.2009. Date of decision: May 18, 2009. Raj Kumar …Appellant. Versus State of Himachal Pradesh ..Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? Yes For the Appellant : Mr. T.R.Chandel and Mr. Vinay Thakur, Advocates. For the Respondent : Mr. Ramesh Thakur, Assistant Advocate General. __________________________________________________________ Kuldip Singh, Judge The appellant has come in appeal against his conviction dated 1.7.2002 and sentence dated 3.7.2002 under Section 307 IPC by the learned Sessions Judge, Bilaspur in Sessions Trial No. 3 of 1996 sentencing him to undergo rigorous imprisonment for three years and to pay a fine of Rs.2000/-, in default of payment of fine to further undergo rigorous imprisonment for one month. 2. The prosecution case, in brief, is that PW-1 Raghubir Singh on 20.12.1994 was sleeping in his rented room at 10.30 P.M. at Panjgain (Gahar) when someone knocked at his door. He came out and noticed ______________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes. 2 three persons namely Anil Kumar, Raj Kumar and Prem Singh in the verandah. Prem Singh and Anil Kumar caught hold of PW-1 and Raj Kumar struck a blow of knife on his stomach. He cried but in the meantime accused fled away. The land-lady PW-2 Jai Devi along with her son came to the spot. Both of them put PW-1 on the cot and took him to Primary Health Centre, Panjgain where PW-3 Dr. S.P.Dhiman attended the injured around 1.50 A.M. and he issued MLC Ex.PW-3/A. The injured was referred to District Hospital, Bilaspur, PW-3 also informed the police at which PW-4 Vijay Pal Head Constable went to Primary Health Centre, Panjgain. PW-1 was not fit to make statement, therefore PW-4 could not record the statement of PW-1. 3. PW-4 reached Bilaspur at 8.40 a.m. and moved an application Ex.PW-4/A for recording the statement of PW-1. Thereafter, statement of PW-1 under Section 154 Cr.P.C. Ex.PW-1/A was recorded and thereupon FIR Ex.PW-7/A was registered. The site plan Ex.PW-4/B was prepared by PW-4. PW-7 Kaur Chand Sub Inspector visited the spot and took into possession shirt Ex.P-1, vest Ex.P-2 vide memo Ex.PW- 1/B. The accused were arrested, the appellant Raj Kumar while in custody allegedly made disclosure statement Ex.PW-8/A under Section 27 of the Indian Evidence Act for recovery of knife and at his instance knife Ex.P-3 was recovered vide memo Ex.PW-8/B. The clothes of the injured and knife were sent for chemical analysis and report of Chemical Examiner Ex.PW-9/A was received. 4. On completion of investigation challan was presented against the appellant and two more namely Anil Kumar and Prem Singh. The charge for committing offence punishable under sections 452, 307 read with Section 34 IPC was framed to which the appellant and two others did not plead guilty and claimed trial. The prosecution has 3 examined nine witnesses and placed some documents on record. In the statements under Section 313 Cr.P.C. the appellant, Anil Kumar and Prem Singh, denied the prosecution case. No defence witness was examined. On conclusion of trial, the learned Sessions Judge, acquitted Anil Kumar and Prem Singh but convicted Raj Kumar, hence present appeal by Raj Kumar. The State has not filed any appeal against the acquittal of Anil Kumar and Prem Singh nor the State has filed an appeal against the acquittal of appellant under Section 452 IPC. 5. I have heard Mr. T.R.Chandel, Advocate, learned counsel for the appellant and Mr. Ramesh Thakur, learned Assistant Advocate General for the respondent and have also gone through the record. Mr. T.R.Chandel, learned counsel for the appellant has submitted that the learned Sessions Judge has not properly appreciated the evidence on record. The learned Sessions Judge has disbelieved the prosecution story for two accused namely Anil Kumar and Prem Singh but wrongly convicted and sentenced appellant on the basis of same story. On the basis of evidence, it is clear that the assailants were not identified by PW-1 and PW-2. It appears the place of occurrence is not the spot as alleged by the prosecution. There is no explanation why blood was not lifted from the spot. The alleged recovery of knife is suspicious. PW-1 and PW-2 have falsely implicated the appellant. It was not for the appellant to explain why he has been implicated in the case, rather it was for the prosecution to prove the case against the appellant beyond reasonable doubt. The statement of doctor regarding the injury sustained by PW-1 is hear say. The suggestions put by the defence is not the evidence. The prosecution is to stand on its own feet. The learned Sessions Judge has mis-construed and mis-interpreted the evidence on record and has erred in convicting and sentencing the 4 appellant. The learned Assistant Advocate General has supported the impugned judgment and has submitted that the prosecution has proved the case against the appellant beyond reasonable doubt. He has submitted for dismissal of the appeal. 6. Ex.PW-1/A is the statement of PW-1 Raghubir Singh in which he has stated that at about 10 p.m. on 20.12.1994 he had gone to sleep in the upper storey, somebody at about 10.30 p.m. knocked his door. He switched on the outside light, unbolted the door and came out in the verandah. He saw three persons namely Prem Singh, Raj Kumar and Anil Kumar were standing there. Prem Singh and Anil Kumar caught hold of him and Raj Kumar gave him knife blow on the left side of the stomach. He raised alarm, all accused ran away in a van which was parked outside the gate. On hearing his cries, PW-2 Jai Devi and her son came to the spot, put him on the cot and took him to P.H.C. Panjgain. Ex.PW-4/B is the site plan of the house of PW-2 Jai Devi having two storeys. In site plan Ex.PW-4/B mark ‘A’ is the place where according to prosecution occurrence took place, Mark ‘B’ is the entrance of room and mark ‘C’ is the place where PW-1 Raghubir Singh was sleeping at the time of alleged occurrence, Mark ‘D’ is the ground floor of Jai Devi and mark ‘E’ is the stair case leading to verandah. Ex.PW-8/B is the recovery memo of knife Ex.P-3 which was sealed in a cloth vide seal ‘T’. Ex.PW-9/D is the F.S.L. report in which it has been stated that knife having total length 24 cms. was taken out which was having rusted blade. On examination, no blood was found on the knife. 7. PW-1 Raghubir Singh has stated that he was having a residence in the house of Kashmir Lal Shandilia at Panjgain. He was sleeping in the upper storey. On 20.12.1994 he was sleeping in his room at about 10.30 p.m. The door was not bolted from inside. Someone 5 knocked at the door, he opened the door. He was immediately caught by Prem Singh, Raj Kumar and Anil Kumar gave him stab blow with knife on his stomach. He raised hue and cry and above named accused ran away from the spot. The owner of the house came there in his room alongwith other persons namely Smt. Jai Sharma and Anupam. They lifted him from the floor and put him on the cot and took him to hospital at Panjgain. He was got medically examined at Panjgain from there he was referred to District Hospital, Bilaspur. 8. PW-1 has further stated that statement Ex.PW-1/A under Section 154 Cr.P.C. was recorded in the hospital. He was referred to P.G.I. Chandigarh where he remained admitted for seven days. He handed over shirt Ex.P-1 and vest Ex.P-2 to police. He identified knife Ex.P-3 with which the accused stabbed him. In cross-examination, he has stated that all the accused were having knives in their hands. The road from his house is about 20 feet. He was about to get up the cot when the accused persons caught hold of him and gave a stab blow, volunteered he was taken outside the verandah where Raj Kumar gave stab blow. There was one cot already in the verandah on which he was placed by the wife of land-lord and her son. A bed-sheet was lying on the cot. He was taken to ground floor by holding his arms. He had fallen down when he pushed accused Raj Kumar. He had not handed over his shirt, vest to police when his statement under Section 154 Cr.P.C. was recorded. 9. PW-2 Jai Devi has stated that Raghubir Singh was her tenant in the upper storey. On 20.12.1994 she was sitting alongwith her son in her room and Raghubir Singh was in his room. Around 10.00 or 11.00 p.m. she heard shrieks of Raghubir Singh and she rushed towards the verandah and saw sitting Raghubir with his hand on his stomach. 6 She had seen Raj Kumar, Prem Singh and Anil Kumar going out from their house running. Raj Kumar was having knife in his hand. Raghubir Singh had told her that Raj Kumar had inflicted stab blow on his stomach and other accused were with him. The injured was taken to Panjgain hospital from where he was referred to District Hospital, Bilasapur. In cross-examination, she has stated that she had seen all the accused persons coming through stairs of her house and thereafter she does not know where they had gone. She had seen one van stationed out of her house. The van which was parked outside her house had left then the accused ran away from her house. When she reached the verandah she saw Raghubir Singh sitting there but the bulb was broken. They were having some dispute with the father of the accused Raj Kumar about 10 years ago. There were blood stains on the floor and the verandah was having cement flooring. The police had shown her knife Ex.P-3 on third day in the morning at her house. 10. PW-3 Dr. S.P.Dhiman examined Raghubir Singh on 21.12.1994 at 1.50 a.m. He has stated that Raghubir Singh was referred to PGI, Chandigarh where he was admitted on 22.12.1994. He was attended by Doctors Rupinder, Ishwar and Bhupinder. The post operative diagnosis at PGI, Chandigarh was stab injury abdomen alongwith transverse colon perforation. The final opinion of the injury was grievous attempt – dangerous to life by sharp weapon which may cause death. The medico-legal certificate is Ex.PW-3/A, the final opinion is Ex.PW-3/B and both are in his hand and bear his signatures. The patient was referred to District Hospital vide prescription slip Ex.PW-3/C, the opinion Ex.PW-3/D was given by him. In cross-examination, he has stated that he had informed the police on telephone, he gave opinion Ex.PW-3/A after police had shown him PGI treatment record i.e. 7 operational note record of the patient. The injury on the person of injured can be caused if he struck against some stump. 11. PW-4 Vijay Pal No.315 has stated that he had visited the spot and seen the spot where Jai Devi told that quarrel had taken place. PW-8 Sukh Ram was declared hostile, he was cross-examined by the prosecution but denied that knife was recovered vide memo Ex.PW-8/B. PW-9 Keshav Ram, Sub Inspector has stated that he conducted the investigation and prior to him the case file was with Head Constable Vijay Pal. Raj Kumar in his statement under Section 313 Cr.P.C. has denied the prosecution case. 12. The house of PW-2 Jai Devi as per site plan Ex.PW-4/B is two storeyed. The prosecution case is that Jai Devi was occupying ground floor of the house whereas PW-1 Raghubir Singh was tenant in the upper storey. The stair-case from the ground opens in the verandah outside the room of Raghubir Singh. The occurrence took place according to prosecution in the upper storey verandah immediately outside the room of Raghubir Singh. According to prosecution except PW-1 Raghubir Singh and the accused no other person was present and had actually seen the occurrence. 13. PW-1 in his statement Ex.PW-1/A under Section 154 Cr.P.C. has stated that at about 10.30 P.M. somebody knocked at the door, he unbolted the door and came out in the verandah and saw Prem Singh, Raj Kumar and Anil Kumar standing there. Prem Singh and Anil Kumar caught hold of him and Raj Kumar gave him knife blow on the left side of the stomach. He raised alarm, all accused ran away in a van which was parked outside in the gate. On hearing the cries, PW-2 Jai Devi and her son came on the spot. In the Court PW-1 has stated that at about 10.30 p.m. someone knocked at the door which was not bolted 8 from inside, he opened the door and he was immediately caught by Prem Singh, Raj Kumar and Anil Kumar gave him stab blow with knife in the stomach. Later in the statement, he has stated that Raj Kumar gave knife blow. In the Court, he has stated that all accused were having knives in their hands. He has also stated that he was about to get up the cot when the accused persons caught hold of him and gave him stab blow, volunteered that he was taken outside the verandah where Raj Kumar gave stab blow. There was one cot already in the verandah on which he was placed by the wife of the landlord and her son. A bed- sheet was lying on the cot. 14. There is contradiction in the initial statement of PW-1 under Section 154 Cr.P.C. and the statement made by him in the court. In statement under Section 154 Cr.P.C., he has stated that door was unbolted by him and he came out and the occurrence took place in the verandah where Raj Kumar gave knife blow in his stomach. In the Court, he has stated that room of his door was not bolted, he was about to get up the cot when the accused persons caught hold of him and gave a stab blow, volunteered that he was taken outside the verandah where Raj Kumar gave stab blow. It means according to PW-1 two stab blows were given to him, one by Raj Kumar and for the another blow he has not named anyone. The MLC Ex.PW-3/A refers only one cut wound on the ventral aspect of abdomen. The injury in the MLC is not matching with the statement of injured PW-1 which indicates that two stab blows were given to him at the time of occurrence. In the court, he has also stated that all the accused persons were having knives with them. But in his statement under Section 154 Cr.P.C. he has not stated so. These contradictions create suspicion in the prosecution story. 9 15. PW-1 has stated that immediately after stabing him, all the three accused ran away. In Ex.PW-1/A complainant has stated that all accused ran away in the van. PW-2 is not an eye witness but she has stated that she reached the spot immediately after the occurrence. She had seen all the accused persons coming through the stairs of her house and thereafter she does not know where they had gone. The van which was parked outside her house left then the accused ran away from her house. She has also claimed that Raghubir Singh had told her that Raj Kumar had inflicted stab blow on his stomach. 16. PW-2 has not stated that all the three accused were having knives with them. She has stated that Raghubir Singh had told her that Raj Kumar had inflicted stab blow on his stomach. This part of the statement of PW-2 has been relied by the learned Sessions Judge under Section 6 of the Indian Evidence Act. In his statement under Section 154 Cr.P.C. Ex.PW-1/A, PW-1 Raghubir Singh has not stated that he disclosed to PW-2 that stab injury was given to him by Raj Kumar. PW-1 Raghubir Singh in his statement again in the court has nowhere stated that he disclosed to PW-2 that Raj Kumar had inflicted stab blow on his stomach. The statement of PW-1 further indicates that no such talk took place between PW-1 and PW-2, as to who inflicted stab injury to PW-1 Raghubir Singh. There is contradiction in the statements of PW-1 and PW-2 in what manner the accused fled away from the scene. PW-1 has stated that they left in van, PW-2 has stated that van had left then the accused ran away from her house. 17. It has come on record that PW-2 had not good relations with the family of appellant. She has stated that she had seen all the accused persons coming through stairs of her house, Raj Kumar was having knife with him. She did not question the accused why they were in 10 her house at about 10.30 p.m. This creates doubt in the prosecution story as to whether PW-2 Jai Devi reacted in the manner as claimed by the prosecution after stab injury to PW-1. It appears PW-2 was not on the spot as claimed by her but in order to buttress the case of the prosecution she has been examined by the prosecution. 18. The incident took place at about 10.30 p.m., the injured reached the hospital at about 1.45 a.m. on 21.12.1994. It took plus 3 hours for PW-1 to reach P.H.C., Panjgain from the place of occurrence. PW-4 has stated that when he reached Panjgain hospital, the injured was there, the distance between Panjgain and Bilaspur is 2 kilometers. The sequence of events narrated by PW-1 indicate that after the occurrence he was taken to hospital at Panjgain. It is reasonable to infer that the distance between the house of PW-2 and P.H.C. Panjgain must be very less but certainly not more than 22 kilometers and that is why the injured was removed to PHC, Panjgain after the occurrence. As per MLC Ex.PW-3/A, the injured reached PHC, Panjgain at 1.45 a.m. PW-4 H.C. Vijay Pal has stated that at 1.35 a.m. on 21.12.1994 information was received from PHC, Panjgain that one person in injured condition was brought to the hospital and even if this information is taken to be the information with respect to PW-1 Raghubir Singh in that case also PW-1 reached Panjgain hospital earliest at about 1.35 a.m., keeping in view the possible distance between the place of occurrence and the Panjgain hospital, it is clear that the injured was taken in the van to Panjgain hospital much after 12.30 A.M. This further creates a suspicion that occurrence took place at 10.30 P.M. The prosecution has not explained the delay in removing the injured from the place of occurrence to PHC, Panjgain. This has relevance when it has 11 been argued on behalf of the appellant that occurrence did not take place in the manner and at the place as alleged by prosecution. 19. PW-2 has stated that blood drops fell on the floor at the place of occurrence but blood was not lifted during the investigation from the place of occurrence. The prosecution has given no explanation why the blood was not lifted from the spot. It is reasonable to infer that during investigation, the Investigation Officer would lift the blood found at the place of occurrence and not lifting of the blood from the place of occurrence indicates that in fact no blood was lying at the place of occurrence which falsifies the prosecution story about the place of occurrence. PW-1 has stated that he was placed on the cot by PW-2 and her son and cot was having bed sheet. In normal course blood must have also fallen on the bed sheet but the bed sheet was also not taken into possession during investigation. In Satya Narain Bhagat and another Vs. State of Bihar, 1992 Cri. L.J. 2156, it was held that omission on the part of Investigating Officer to seize blood stained earth from the place of occurrence cast serious doubt on the place of occurrence. 20. The knife Ex.P-3 was allegedly recovered on 25.12.1994 in presence of witnesses PW-8 Sukh Ram and Anant Ram. In recovery memo Ex.PW-8/B, it has been stated that the knife was packed in a cloth which was sealed by seal ‘T’. According to PW-2, the knife was shown to her by police on third day morning i.e. on 23rd morning. In case the knife Ex.P-3 was already shown to PW-2 on 23rd morning by police, then it cannot be said to have been recovered pursuant to disclosure statement Ex.PW-8/A vide recovery memo Ex.PW-8/B dated 25.12.1994. This falsifies the prosecution story that knife allegedly used for the 12 commission of the offence was recovered on the basis of disclosure statement under Section 27 of the appellant. 21. PW-3 Dr. S.P.Dhiman has stated that after examining the PGI treatment record of the patient, he had given his final opinion Ex.PW-3/B on 2.1.1995. PW-3 has not stated that the final opinion Ex.PW-3/B has been given by him on the basis of his own examination of the injured. The PGI treatment record of the injured has not been placed on record. The opinion Ex.PW-3/B of PW-3 is not based upon primary evidence and is of no help to the prosecution in order to show the nature of injury of PW-1. 22. The learned Sessions Judge has taken into consideration certain suggestions which were given to the prosecution witnesses on behalf of the defence in convicting the appellant. The learned counsel for the appellant has submitted that suggestions given by the defence to the prosecution witnesses is not evidence of the prosecution. The prosecution is to stand on its own feet and not on the suggestions put to the prosecution witnesses by the defence. In support of this submission, the learned counsel has relied Koli Trikam Jivraj & another Vs. The State of Gujarat, AIR 1969, Gujarat 69, wherein it has been held that suggestions put in the cross-examination are no evidence at all and on the basis of such suggestions, no inference can be drawn against the accused that he admitted the facts referred to in the suggestions. In view of this position, the learned Sessions Judge has erred in using suggestions put to the prosecution witnesses by the defence in convicting the appellant. 23. The prosecution had prosecuted three persons namely Anil Kumar, Prem Singh and Raj Kumar on the basis of one story. The prosecution story as far as Anil Kumar and Prem Singh is concerned, 13 has been disbelieved by the learned Sessions Judge. There is no denial of the fact that the court while assessing the evidence can come to independent conclusion regarding the involvement of accused persons in the commission of offence. In other words, the Court can segregate the facts while returning ultimate findings. But this depends upon the facts of the case. 24. In the present case, the prosecution has projected a common positive case that Prem Singh and Anil Kumar caught hold PW-1 and Raj Kumar gave knife blow in the stomach of PW-1. The learned Sessions Judge has not believed the prosecution story as far as Anil Kumar and Prem Singh is concerned. In these circumstances, it can be safely concluded that Prem Singh and Anil Kumar were not at the place of occurrence. It means two other persons were involved in the crime or it is the sole handiwork of appellant. This gives completely a new twist to the prosecution case. It is reasonable to infer that appellant all alone would not venture to go in the house of PW-2 at 10.30 P.M. to commit crime with knife only knowing fully that he was not having good relations with PW-2 and her family. This also creates suspicion in the prosecution story. On facts it is not possible to segregate the case of appellant from Anil Kumar and Prem Singh who have been acquitted, this creates suspicion in the prosecution story. In Satbir Vs.