State of Himachal Pradesh vs Gulshan Kumar, Vinod Kumar and Rakesh Kumar

Deepak Gupta, J.—This appeal by the State is directed against the judgment dated 1.9.2003, passed by the learned Sessions Judge, Kangra at Dharmshala, whereby the accused were acquitted of having committed an offence punishable u/s 302 read with Section 34 of the Indian Penal Code. The prosecution case, in brief, is that on 6.12.2001 Bir Chand had gone to attend the marriage of Ranjit Singh in village Chhirnag. He had gone as a member of the barat. The prosecution story is that after the barat had partaken dinner, Bir Chand followed by PW-3 Manish and Trilok left for the place where the arrangements had been made for the stay of the barat. They were followed by PW-2 Vipan Chand, brother of the deceased and Onkar. When they reached a field near the retaining wall they found that all the three accused were beating Bir Chand and accused Gulshan hit Bir Chand on his head with a danda and the other two accused gave him kick and fist blows. The other four persons attempted to save Bir Chand but they were threatened by the accused and therefore, ran away. They hid themselves in the bushes near the place of occurrence. They came back to the place of occurrence after sometime but did not find Bir Chand there. They searched from him but to no avail. Thereafter assuming that Bir Chand had gone back to his own house or the house of some of his relatives, they went to their respective houses. PW-2 Vipan Chand did not find his brother Bir Chand at home.

Next morning PW-2 Vipan Chand, Onkar, Jeewan, Sanjay, Sukh Lal and Chuni Lal, father of the deceased, went in search of Bir Chand to village Chhirnag but could not find him there. Around 9.00 am, Sanjay and Jeewan noticed the body of Bir Chand lying below a Dhank and informed PW-2 Vipan Chand. Thereafter PW-2 alongwith his other relations and friends went to the spot and saw the dead body of Bir chand. There were injures on the face, neck and nose of Bir Chand. Sukh Lal, uncle of the deceased, informed PW-6 Milkhi Ram, Pardhan Gram Panchayat of village Chandrot about the incident, who in turn telephonically informed the SHO, Police Station, Kangra where the message was recorded in daily diary No. 5 dated 7.12.2001 (Ext. PW-9/A).

Thereafter PW-13 SHO Parkash Chand went to the spot, took the photographs and further investigation was carried out. The dead body was sent for postmortem, which was conducted by PW-1 Dr. A.K. Sharma. According to the doctor, the deceased had died due to brain oedema due to extensive subdural haemotoma, following head injury. Accused were arrested on 7.12.2009 and on 9.12.2009 accused Gulshan made a disclosure statement Ext. PW-2/B, which led to the recovery of danda which was seized vide memo Ext. PW-2/C. The alleged recovery was made in presence of PW-2 Vipan Chand and PW-4 Kaur Chand. On this basis, the accused were charged with having committed the offence aforesaid. The learned trial court acquitted the accused. Hence this appeal by the State.

The entire case of the prosecution is based on the statements of the brother PW-2 Vipan Chand, PW-3 Manish, who were allegedly accompanying the deceased, and PW-5 one child witness, a young girl, Arti, aged about 12 years, who is also stated to be an eye witness to the incident.

Before discussing the oral evidence, it would be pertinent to refer to the first information given to the police and recorded in the daily diary Ext. PW-9/A. This information as per the prosecution was given by Milkhi Ram, Pardhan of the Gram Panchayat, who had been apprised about the death of Bir Chand by Sukh Lal, uncle of the deceased. According to Ext. PW-9/A at about 11.50 am, a telephonic message was received from Milkhi Ram, Pardhan Gram Panchayat, Chandrot that on the previous night of 6th December, 2001 one barat had gone from Chandrot to Chhirnag and the barat had thereafter returned to Chandrot but one boy had got lost at night and his body was found below a dhank in the Khud. In this report there is not even an indication that the deceased was done to death. Admittedly, this report was lodged after PW-2 Vipan Chand alongwith his uncle Sukh Lal and his father Chuni Lal had gone to the spot where the body was lying. If indeed Vipan Chand had witnessed the incident as he would have this court believe, then when he found the dead body of his brother he would have immediately informed his father and uncle about what had happened the previous night and they in turn would have informed the Pardhan who was to inform the police. It is in the light of the first information given to the police that we have to examine the evidence of PW-2 Vipan Chand.

The version of PW-2 Vipan Chand is that after the barat had taken meals between 8.00 pm and 9.00 pm, the baratis were asked to stay in the adjoining houses and that electric lamps had been fixed to light up the path going to these houses. His version is that the deceased was going ahead with Manish and Trilok and he (Vipan Chand) and Onkar were following them. When they reached near the retaining wall he saw the accused present in Court beating Bir Chand and accused Gulshan hit Bir Chand with a danda. He submits that he, Onkar, Manish and Trilok tried to save Bir Chand and intervened but they were made to flee away by the accused. When they fled away Bir Chand was lying in the field. They hid themselves in the bushes and came back after sometime and found that Bir Chand was not there. Thereafter he went back to his house and next morning, as narrated earlier, he was informed about that the dead body of his brother lying in the Khud below a dhank.

In addition to the contradiction between the statement of PW-2 and Ext. PW-9/A, which has already been dealt above, the version of this witness is not believable and there is serious doubt as to whether he was present at the spot or not. If the version of this witness is to be believed then the accused were only three persons whereas the deceased (Bir Chand) was accompanied by Vipan Chand, Manish Onkar and Tarlok Chand. It is also in evidence that Bir Chand was a serviceman and had come on leave from the Army. It cannot be believed that these five young persons would run away and would not fight with the assailant party if indeed the occurrence had happened in their presence. Assuming that these people were scared and ran away then also they would have hidden close by and there would be no opportunity for the accused to have taken the body of deceased Bir Chand from the field, dragged it to the dhank and then dropped it into the Khud. This story is not at all believable.

As per this witness they were all to stay in Village Chhirnag itself as they were members of the barat and arrangements for the stay of barat were made in that village. If we accept the version of Vipan Chand that after his brother was not found they thought that his brother had gone somewhere, there is no explanation why he went back to his own house. He alongwith other baratis would have continued to stay in village Chhirnag whereas the evidence is that all of them i.e. Vipin Chand, Onkar Manish and Trilok went back to village Chandrot. This also casts a doubt on the prosecution version that these witnesses were not present at the spot.

Another surprising aspect of the matter is that if Vipan Chand had witnessed that his brother was being beaten up mercilessly by the accused he would have immediately gone back to the place where the weeding was being held and complained to the bride''s side and to the other baratis about what had happened. In cross-examination he states that he did not do so and he quietly went back to his own house.

The version of PW-3 Manish is materially different from that of PW-2 Vipan Chand. According to PW-2 Vipan Chand the deceased Bir Chand was accompanied by Manish and Trilok whereas according to PW-2 Manish, deceased Bir Chand was walking ahead and he (Manish) and Trilok were following him to the place where the arrangements had been made for their stay. His version is that first the other two accused Rakesh Kumar and Vinod Kumar accosted deceased Bir Chand and they started talking with each other. In the meantime, accused Gulshan came and after having a verbal altercation with Bir Chand, picked up a danda and hit Bir Chand on the head. Thereafter the other accused starting beating Bir Chand with kicks and fist blows. According to him, he and Trilok tried to intervene but they were forced to flee by the accused. After 5-7 minutes when he and Trilok came back to the spot they did not find anybody there and then he left for his house. There is no mention of Vipin Chand in the Statement of Manish. He in fact in cross-examination states that since they were only two persons and the assailant party comprised of three persons they had to run away. This version is also wrong because even according to him if the deceased is counted, there would be three against three. It is in his cross-examination that for the first time the witness states that Vipan Chand and his companion came thereafter. He does not even name the companion though Onkar belongs to the same village.

The other eye witness is PW-5 Arti. According to her she had gone as a member of barat since Ranjit was her brother in relation. Her version is that when she was washing her hands near the retaining wall, she saw Gulshan accused striking Bir Chand with a danda on his head. At that time Shashi and Sarwan were with her. Bir Chand was standing below the Danga (retaining wall) in the field. Two other persons, who were there, gave kicks and fist blows to Bir Chand but she could not recognize these two persons. Her version is that thereafter she got scared and went back and slept. She however, informed her mother about this incident when she went back to her village since the mother had not accompanied the barat. She was confronted with her statement recorded u/s 161 Cr. P.C. Ext. DB wherein the name of Gulshan was not mentioned. She also admits that 2-3 days later the police had shown accused Gulshan to her. Her version is also that she did not tell any member of the barat about the incident. Neither Shashi nor Sarwan were examined. From the evidence it is not clear who Shashi and Sarwan are. It is not clear how old they were. The prosecution has not examined Trilok, Onkar, Shashi and Sarwan. It was necessary to examine these witnesses if the prosecution wanted to prove its case.

There are so many contradictions between the statements of the three main witnesses PW-2, PW-3 and PW-5 that it would be highly imprudent to rely upon these witnesses. The presence of PW-2 is extremely doubtful at the spot. Even the presence of PW-3 is doubtful because he also states that he was accompanying all the persons when they went to see the dead body of Bir Chand next morning. Assuming that PW-2 had not witnessed the occurrence and PW-3 had witnessed the occurrence then it was the duty of PW-3 to have informed the family members of the deceased about the occurrence which he had witnessed the previous night. Therefore, his statement cannot also be relied upon.

As far as PW-5 Arti is concerned, even if it be believed that she has seen the occurrence it is obvious that she did know and could not identify the persons who were the assailants.

Coming to the recovery of danda, the less said the better. By sheer coincidence, the witness to the so called disclosure statement is none else than PW-2 who happened to visit the Police Station. Assuming that the disclosure statement was made, even as per this witness and PW-4 Kaur Chand there were large number of villagers present when the danda was recovered. Why were the independent witnesses not made witnesses to the recovery of the danda? Further more according to PW-1 Dr. A.K. Sharma, the injuries on the deceased were also possible by fall from a dhank and they were not necessarily caused by the danda itself. Therefore, the recovery of danda is not only doubtful but does not help the prosecution at all. In view of the above discussion, we find no merit in this appeal, which is accordingly dismissed. Bail bonds discharged.