State of Himachal Pradesh vs Arjun Alias Anna and Others

Justice Deepak Gupta, J.—This appeal by the State is directed against the judgment dated 20th September, 2003, delivered by the learned Additional Sessions Judge-I, Kangra at Dharamshala, in Sessions Case No. 12-N/2000, whereby he acquitted the accused of having committed the offences punishable u/s 302, 201, 120B and 34 IPC. There was also a charge of having committed an offence punishable u/s 176 IPC against respondent No. 5, Leelo. At this stage, it would be pertinent to mention that respondent No. 4, Nathani alias Raj Bhaiya, has expired and the appeal stands abated qua him and has now been decided qua the other respondents.

Briefly stated, the facts of the case are that at about 4.30 p.m., on 16.06.1999, some unidentified person give telephonic information at Police Post Damtal to the effect that two servants of Leelo, Pradhan of Village Chhani, namely Nasir and one Bhaiya, have fought with each other and died as a result of the fight and that preparations are being made to cremate them. This information was recorded at Daily Diary No. 12. Thereafter, the Incharge, Police Post Damtal, conveyed this information to Police Station Indora, which was recorded at Daily Diary No. 19 at 5.00 p.m. on 16.06.1999. In the Daily Diary Report entered at Police Station Indora, it has further been stated that the ASI had made some secret inquiry, which had revealed that Bhaiya (probably a resident of Bihar) had been cremated. The police, thereafter, went towards village Chhani and found that on the bank of Chaki khad, one dead body had already been cremated. Some ashes and bones were recovered and taken into possession.

Thereafter, statement of one Shri Chaman Lal (PW-1) was recorded u/s 154 Cr.P.C. As per this statement, Chaman Lal was a neighbour of Leelo, but she did not reside in the house which was next to his house. However, her son and servants used to sometimes come and occupy the residence. According to Chaman Lal, on 15.06.1999 at about 10.00 p.m., when he was sleeping under a tree near his house, he heard a noise and saw that on the roof of Leelo''s house, her servants, Raju and Nasir, and her son, named Anna, had consumed liquor and were fighting and abusing each other. He also heard them threatening to kill somebody. According to him, then he saw one or two scooters coming towards the house of Leelo and this continued for the whole night. He was scared and did not say anything. At about 4.00 a.m., he saw that Nasir and one Gonny (brother of Anna''s wife) had come to the common tap to take water. After taking water, they went back. Thereafter he saw Leelo''s tractor coming towards her house, in which five or six persons were sitting and after sometime, the tractor was returned. During day time, he came to know that Raju Bhaiya had died and had been cremated. On this basis, FIR was lodged and investigation conducted.

It is apparent that as per this statement it was one Raju Bhaiya who had died and had been cremated. Chaman Lal was examined in Court as PW-1. Surprisingly, the prosecution did not choose to examine him with regard to the incident or the things which he had actually witnessed. He stated that the police had recorded his statement, Ex. PW-1/A, but did not support the prosecution version otherwise. He was neither declared hostile nor was his statement recorded on the lines of the statement u/s 154 Cr.P.C. He was not even confronted with his statement u/s 154 Cr.P.C.

We are constrained to observe that neither the Public Prosecutor nor the learned trial Judge were interested in doing their duty. The role of a Judge is to seek the truth. As a seeker of the truth, the Judge, if necessary, should not hesitate to ask questions from a witness. He is not supposed to be a mute spectator, if the Public Prosecutor fails to discharge his functions.

The examination-in-chief of Shri Chaman Lal (PW-1) reads as follows:

Stated that my house is near the house of accused Leelo Devi. Three years ago, it was night time, there was noise in the house of Leelo, in the morning it was found that some BHAYA had died. Police came and recorded my statement in my house, which is Ex. PW-1/A. Leelo had two-three servants I do not know their names.

Obviously, the statement, Ex. PW-1/A, cannot be read as the statement of Chaman Lal on oath in Court. The Public Prosecutor should have examined him further to find out the truth or if he felt that the witness had resiled from the statement recorded u/s 154 Cr.P.C., he should have requested the Court to declare Chaman Lal to be a hostile witness and then should have cross-examined him. The Public Prosecutor did not do any of these things, virtually making the prosecution case fall flat on it''s face.

As observed above, if the Public Prosecutor had failed to discharge his functions, the Judge should not have sat as a silent spectator and he could have questioned Chaman Lal and found out whether the statement recorded u/s 154 Cr.P.C. was correct or whether what he was telling in Court was correct. Unfortunately the Judge also failed to discharge his functions. We are not saying further in the matter, since both, the Public Prosecutor and the Judge, have since retired from service.

The only witness to the incident, if at all, he can be called that, was Chaman Lal. He has not supported the prosecution case at all and according to him, the tree under which he was sleeping was 300 meters from the house of Leelo. The prosecution, for reasons best known to it, has failed to get this witness declared hostile and cross-examined him. According to him, he did not know the names of the servants and he made no inquiry at the night. Therefore, the only version of this witness is that there was some noise in the house of Leelo and in the morning it was found that some Bhaiya had died. This statement cannot also be accepted, since the deceased was not a Bhaiya, but a person from Punjab, Charanjit Singh.

PW-3, Dr. Mukesh Sharma, treated the deceased before he died at the house of Leelo. According to him, he was called by the grandson of Leelo and he found one person lying with a head injury. He administered first aid to this injured person and told Leelo that the injured should be taken to hospital, since the injury was serious and beyond his competence. He further states that about two-three days later, the police came to his clinic and showed photographs, Ex. P-16 and P-17, and he identified the injured to be the person, who was depicted in the photographs and the name of this victim was Charanjit Singh. In the cross-examination, this witness admits that when he asked the injured how he suffered the injuries, the victim had told him that he (victim) and Nasir (another servant of Leelo) had consumed liquor on the roof of the house. Thereafter, both of them had fought and had a quarrel and during this quarrel, they both fell off the roof into the drain below. Further according to him, other than the injury on the head, which could have caused by a fall, he did not notice any other injury. He has categorically stated that the injury on the head of Charanjit Singh, which he saw, could not have been caused by a sharp edged weapon. Here again, no attempt was made by the police or the Public Prosecutor to ask this witness to produce the record, if any, or to show whether he had actually noticed such injuries or some other injuries.

PW-2, Tilak Raj, is a resident of the village Chhani. He was the Pradhan of the village prior to Leelo. According to him, on 16th June, Leelo came to his house at about 2.00-2.30 p.m. and informed him that on the previous night, there had been a fight between her servants, Charanjit and Nasir, at her house in village Majra and that these persons were intoxicated and under the influence of the liquor, both fell off the roof and Charanjit Singh had died and Nasir also sustained serious injuries. She asked him to inform the police. The witness stated that he first went to Pathankot and then went to the Police Station but in the meantime, police met him and told him that they already knew about the incident.

This witness is also a witness to the recovery of a Gandasa, allegedly on the basis of a disclosure statement, Ex. PW-2/H made by the accused, Nasir. However, according to this witness, when he reached the Police Station on 25.06.1999, Gandasa was already lying in the police station. He further states that he had told the Police Inspector that none of the proceedings had been carried out in his presence, but the police official told him that he must believe the police and therefore, he signed the recovery memo.

PW-4, Tarsem Lal, states that he had seen Arjun and Gonny cremating a body and when he asked whose body they were cremating, they told him that it was the body of Charanjit Singh.

This is the entire evidence in the case. As far as offence of murder is concerned, there is virtually no evidence worth the name to link the accused, Nasir, or any of the other accused and hold them guilty of having committed the offence of murder. No doubt, the deceased, Charanjit Singh, died as a result of the injury. In fact, accused, Nasir, in his statement recorded u/s 313 Cr.P.C., has admitted that a fight took place between him and the deceased when they both were intoxicated and during this fight, they both fell off the roof and Charanjit sustained injuries. Thus, on the basis of the evidence, it cannot be said that the deceased was murdered and, therefore, no offence u/s 302 IPC is proved.

As far as the offence u/s 201 IPC is concerned, the same would be attracted only if a criminal offence was made out. If the death of accidental, then Section 201 IPC is not attracted.

The only other question is whether Leelo, being the Pradhan, should have informed the police and whether by not informing the police herself, she has committed an offence punishable u/s 176 IPC. One of the essential ingredient of Section 176 IPC is that the public servant must have intentionally omitted to give such notice or to furnish such information in the manner prescribed by law. There is no evidence in this regard.

Furthermore, the doctor was called at the instance of Leelo. In fact, it was the duty of the doctor, when he found some injuries, to have informed the police. Further, the statement of Leelo has been supported by PW-2, Tilak Raj, that she had asked Tilak Raj to inform the police. Therefore, it cannot be said that she intentionally failed to inform the police. We, therefore, find no merit in the appeal, which is accordingly rejected. Bail bonds discharged.