State of Himachal Pradesh vs Madan Lal

Sanjay Karol, J.—For an offence, which is alleged to have been committed on 31.08.2003, accused was put to trial. In terms of judgment dated 28.12.2004, passed by the Ld. Additional Sessions Judge-I, Kangra at Dharamshala, H.P. in Sessions Trial No. 4-D/2004, titled as State Vs. Madan Lal, accused stands acquitted of the charged offence.

It is the case of the prosecution that on 1.9.2003 at about 5:15 A.M., Akshay Kumar (PW-3) telephonically informed Police Station, Shahpur that his brother Sushil Kumar was murdered by accused Madan Lal. This information was reduced into writing vide Rapat Ex.PW13/B. Based on the same, Sh. Mohinder Minhas (PW-17), SHO, Police Station, Shahpur proceeded to the spot where he recorded statement (Ex.PW2/A) of Sh. Sunil Kumar (PW-2), real brother of the deceased Sushil Kumar and informant Akshay Kumar (PW-3). Statement Ex.PW2/A was sent to Police Station, Shahpur where FIR No. 143/2003 (Ex.PW12/A) dt. 1.9.2003 was registered on 1.9.2003 at 6:45 AM, against the accused, u/s 302 IPC. PW-17 prepared inquest reports (Ex.PW3/A and Ex.PW3/B) in the presence of Akshay Kumar (PW-5). Statement of relevant witnesses were also recorded. Dead body was sent for postmortem which was conducted by Dr. D.P. Swami (PW-1), Assistant Professor, Tanda Medical College, District Kangra, H.P. who issued postmortem report (Ex.PW1/A) dated 1.9.2003, which revealed that deceased had consumed liquor and died due to hemorrhagic shock on account of two injuries sustained by him. Investigation revealed that accused had given blows with a knife to the deceased and weapon of offence, i.e. knife (Ex.P-5) was recovered by the police on the basis of disclosure statement (Ex.PW17/A) dated 4.9.2003 made by the accused who was arrested on 2.9.2003. Sunil Kumar reported that on 31.10.2003 at about 9:30 P.M. deceased Sushil Kumar and Madan Lal were quarreling with each other. Akshay Kumar called him, they alongwith Sanjeev Kumar who also was present on the spot intervened. He took Madan Lal away and Akshay Kumar caught hold of Sushil Kumar. However, after some time, Sushil Kumar came from behind and again started quarreling with Madan Lal. He tried to intervene but was pushed down. He saw accused Madan Lal giving blows with a knife to Sushil Kumar on his back. Sushil Kumar who was bleeding profusely fell on the ground. Both, he and Sushil Kumar cried and Akshay Kumar and Sanjeev Kumar immediately reached at the spot. They saw accused Madan Lal fleeing away. Sushil Kumar was immediately taken to Primary Health Centre at Rirakmar where he was examined by Dr. Ram Pal Sharma (PW-4). Patient was brought back home where he succumbed to injuries at about 1:00 A.M. Since Telephone Exchange of the area was not working and lines were dead, police could not be informed immediately. It was only at about 5:15 A.M., police could be informed through the Telephone Exchange.

With the completion of investigation, Challan was presented in the Court for trial.

Accused was charged for having committed an offence punishable u/s 302 IPC for having murdered deceased Sushil Kumar @ Lamba to which he did not plead guilty and claimed trial.

In order to prove its case, prosecution examined as many as 17 witnesses and statement of the accused u/s 313 Cr.P.C. was recorded in which he took the defense of false implication and also that deceased was given blows with the knife by Akshay Kumar (PW-3).

Trial Court acquitted the accused of the charged offence, hence, the present appeal.

In the instant case, it has come on record through the testimonies of PW-1 and PW-4 as also medical record Ex.PW4/A and postmortem report Ex.PW1/A that at the time of the alleged crime deceased had consumed liquor. Noticeably, PW-4 specifically deposed that when he examined the patient at about 10:30 P.M., he found him to be uncooperative and in a semi conscious state of mind. Relatives who brought him for treatment did not inform him about the occurrence of incident or the cause of injuries. Hence, there is no reference about the same in the MLC. He states that injuries were grievous and as such patient was referred to the Zonal Hospital, Dharamshala. He further states that had the patient given further medical treatment, perhaps he would have survived. Testimony of PW-1 is also somewhat to this effect.

It has come on record through the versions of all the relevant prosecution witnesses i.e. PW-2, PW-3 and mother of the deceased, Smt. Daya Devi (PW-9) that instead of taking the deceased to the Zonal Hospital for further medical treatment, he was brought home and given milk. Undisputedly, no further treatment was given to the deceased who even as per the statements of these witnesses expired at about 1-1:30 A.M. in the night intervening 31.8.2003 and 1.9.2003.

In the instant case, we find that all the independent witnesses who either witnessed occurrence of the incident; took the injured to the hospital; disclosure statement made by the accused or recovery of the weapon of offence/other relevant material/evidence on record, have turned hostile and inspite of extensive cross-examination by learned Public Prosecutor have not deposed anything in favor of the prosecution. We see no reason for disbelieving these testimonies. Sanjeev Kumar (PW-5), Prem Chand (PW-6), Swaroop Chand (PW-8), Amar Singh (PW-10), Dharam Chand (PW-16), Prittam Chand (PW-15), Pawan Kumar (PW-7) are such witnesses.

We find that this fact alone, by itself is not sufficient to disbelieve the prosecution story, if testimonies of other prosecution witnesses inspires confidence.

However, having minutely perused the record, we find that testimonies of PW-2, PW-3 and PW9 are not worthy of credence. They are not reliable/truthful witnesses. There are material discrepancies/contradictions and unexplained circumstances leading to the place, time and occurrence of the incident and events which took place thereafter.

Before we deal with the contradictions in their testimonies, we would first like to highlight certain unexplained circumstances and factors which have rendered the prosecution case to be doubtful. It renders the defense taken by the accused to appear to be more probable.

Defense of the accused, as has emerged from the cross-examination of the prosecution witnesses is that deceased Sushil Kumar and Akshay Kumar used to run their separate shops in the bazzar. Sushil Kumar used to sell vegetables. On the day of incident, since Sushil Kumar had consumed heavy liquor he was not in a position to sit in the shop, hence his brother, Akshay Kumar did the business. In the evening, Sushil Kumar came to the shop and inquired about the sale proceeds. This led to exchange of words between the two brothers and in this process, Akshay Kumar picked the knife kept in the vegetable shop and gave blows with the same to Sushil Kumar.

Though Akshay Kumar categorically denies this fact, but significantly Sunil Kumar in his testimony admits that " It is correct that there was a quarrel between my brother and deceased brother Sushil Kumar and for that reason he left the house. It is correct that on 31.8.2003, my brother Akshay Kumar was looking after the shop of my deceased brother and his own shop of Karyana and in the evening my brother Akshay Kumar had shut these shops. It is correct that in the evening on that day, when my deceased brother came to his shop, he was under the influence of liquor."

In the instant case, we find that incident was not promptly reported to the police. There is unexplainable delay. This fact by itself would not make the prosecution case to be weak but then it definitely casts doubt in our mind about the genesis of the prosecution story and creditworthiness of its witnesses. This fact would be evident from the events, as we shall see hereinafter unfurling themselves.

It is established on record and admitted by PW-9 that on the day of incident itself at about 8:30 P.M., accused himself made a telephone call to the house of the deceased and requested PW-7 to take the deceased home as he was drunk. Even according to the prosecution witnesses, incident of stabbing took place at about 9:45 P.M. Medical record shows that deceased was examined at the Primary Health Centre at 10:30 P.M. Distance between Rirakmar and Dharamshala is not much. Deceased could have been conveniently taken to the hospital at Dharamshala, yet he was taken home where undisputedly he died at about 1-1:30 P.M. It has come on record through the testimonies of PW-2, PW-3 and PW-9 that they did not do anything further but waited for the telephone lines to become operational and at 5:30 A.M. informed the police about the incident from the Telephone Exchange. Police reached at the spot, recorded statement of Sunil Kumar and based thereupon registered FIR same day at 6:45 A.M. Police was informed about the incident on Telephone by Akshay Kumar. If that be so? then why is it that police did not first record his statement and recorded statement of only Sunil Kumar. This acquires significance considering the fact that it was Akshay Kumar who had taken the deceased to the hospital. Be that as it may be, Investigating Officer (PW-17) has categorically deposed that he did not collect any record regarding failure of the Telephone Exchange. Now except for the bald statements of the relatives of the deceased, there is nothing on record to show that telephone lines were not working or that the Telephone Exchange was not operational during this time. Significantly, it was just one hour prior to the incident accused Madan Lal had himself requested mother of the accused to take away the deceased. In this view of the matter, stand taken by the witnesses that telephone lines were not in operation and therefore police could not be informed, does not appear to be true. Assuming that telephone lines were not in working condition still what prevented the accused from informing the Doctor at Primary Health Centre, Rirakmar about the incident. The same was not done. Even thereafter, accused could have conveniently traveled to the Police Station/ nearest Police Post and informed them about the incident. Also, no written complaint was lodged with the Pradhan or the Panchayat about the incident. Judicial notice can be taken of the fact that distance between the place of incident and the Zonal Hospital, Dharamshala or nearest Police Station/Post is not much. All places are well connected by road. Thus, we find that prosecution has not been able to explain the delay in reporting the matter to the police, which in the instant case casts serious doubt about the genesis of the prosecution story.

Coming to the testimonies of relevant prosecution witnesses, we find that there are inherent contradictions, improvements, embellishments and exaggerations. They do not inspire confidence.

According to the prosecution, incident was witnessed only by Sunil Kumar (PW-2). His statement made in examination-in-chief reads as follows:-

Stated that I am hard of hearing and illiterate person. On 31.8.2003 at about 9:45 P.M. deceased Sushil and Madan Lal accused were quarrelling each other, near the gate of my house at Dharini. At the time of quarreling, there was none there, but later on Pradhan Sanjeev and my elder brother Akshay Kumar came there. Then my Akshay Kumar called me from my house and when I reached at the spot, my brother told me that I should drop Madan for some distance ahead. When I took Madan Lal to some distance, then Sushil Kumar came there and he again started quarrel with Madan Lal. Sushil pushed me, due to which I fell down. When I tried to stood, I saw that accused Madan Lal gave a blow of knife to my brother Sushil Kumar on the back side. Sushil Kumar also cried that accused had given blow of knife to him and on hearing his cry, Pradhan Sanjeev Kumar and Akshay Kumar came on the spot. When they came on the spot, accused fled away. When we saw Sushil Kumar lying on the ground, there was nothing on his front side of his body, but when we change the side of the body of Sushil Kumar, then we find three stab injuries on his back. One stabbed injury on the upper side of the back, 2nd was in the center on the back and the third was on the waist. Blood was oozing from the wounds. We took him to the hospital at Rirakmar (PHC) and after first aid we took him to our house, where he succumbed to injuries and died. We can not gave the information to the police in the night, then in the morning we informed the police through one Thakur. The police came on the spot, where I gave my statement Ex.PW2/A, which bears my signature in red circle. I identify Madan Lal present in the court, who is the same person.

(Emphasis supplied)

Significantly in cross-examination, he contradicts himself by stating that "it is correct that I came to know regarding the incident and stab injuries, when I was called by my brother Akshay Kumar and he told me regarding this." Significantly, this witness admits that when accused Madan Kumar had requested them to take away the deceased, they had sent their mother to bring the deceased back as they themselves apprehended that the deceased would also quarrel with him and Akshay Kumar. In Court he has deposed that the Doctor did not advise them to take the injured for further medical treatment to Zonal Hospital, Dharamshala. But this version stands belied by his brother (PW-3) and mother (PW-9). Further his version in Court that he saw Sushil Kumar and the accused quarreling with each other near the gate of his house, when none else was present and that subsequently Pradhan Sanjeev Kumar and his brother Akshay Kumar came at the spot, is not recorded in his previous statement Ex.PW2/A with which he was confronted. Thus, testimony of this witness uninspiring in nature, is unworthy of credence and reliance.

Now coming to the testimony of Akshay Kumar (PW-3) we also find that he has made several improvements. Undisputedly, he did not witness occurrence of the incident. It is also not his case that the deceased had narrated the incident to him. He states that when the deceased and the accused were quarreling with each other, he called his brother Sunil Kumar and asked him to take away the accused and he caught the deceased. Sunil Kumar and the accused had gone ahead when deceased again started quarreling with Madan Lal. Thereafter Sunil Kumar called him. Both, he and Sanjeev Kumar rushed to the spot and noticed Madan Lal running away holding torch in his hand. Sushil Kumar was lying on the ground unconscious. Sunil Kumar informed him that Madan Lal had given blow with a knife to Sushil Kumar. They arranged for a vehicle and took the injured to the hospital. Now for the first time, he introduced story of torch carried by the accused. There is no recovery of the same either. It only implies that there was no light at the spot hence Sunil Kumar could not have witnessed occurrence of the incident. Be that as it may be, we otherwise find his statement to be uninspiring in confidence. This witness, when confronted with his prior statement recorded u/s 161 Cr.P.C., admits that his version that he was running a Karyana shop and the accused and the deceased were seen quarreling in front of the gate of the house, not to be recorded. Place of quarrel acquires significance in view of following admissions made by him in his cross-examination : "It is correct that second time when my brother Sushil Kumar came towards the bazar and I also came behind him. It is incorrect that Sushil Kumar deceased sat in front of his shop. It is also correct that after some time Madan accused also came there from Darini side. It is correct that my brother Sushil Kumar told to accused Madan Lal that why he has made a telephonic call to his house. It is also correct that accused Madan returned back and went to the house of village Pradhan and he called the Pradhan to the place where deceased Sushil Kumar was sitting. It is also correct that Pradhan suggested that accused be allowed to went to his house and he also directed me to brought my brother to my house. It is correct that thereafter Madan accused went to his house. It is also correct that I caught hold my brother Sushil with my hands and he was trying to free from my hands."

It appears that incident took place not in front or near the house of the deceased but somewhere near the bazzar. Significantly, in Court he states that incident of stabbing was narrated to him by Sunil Kumar which version stands materially contradicted by Sunil Kumar who himself states that it was Akshay Kumar who had narrated the incident to him. Further this witness states that "the Telephone exchange was out of order in those days", which version is untrue. Admittedly, mother had received a telephone call at her residence first an hour prior to the incident. We thus find him not to be a truthful witness.

Now we come to the statement of mother (PW-9), who undisputedly is not a spot witness and incident of stabbing was narrated to her by her son Sunil Kumar (PW-2). She specifically does not mention name of Akshay Kumar. Why so?, has not been explained. This fact in itself acquires significance in the backdrop of the defense taken by the accused. It appears that Akshay Kumar did not want to reveal the true position to his mother and that is why even Sunil Kumar states that Akshay Kumar had informed him that the deceased was stabbed by the accused. Record reveals that it was Akshay Kumar who took the injured to the Primary Health Centre, yet he did not disclose about the incident even to the Doctor. He kept silent about the cause of injuries. Police has also not explained why his statement was not recorded on the spot. As per Rojnamcha, it was this witness who had telephonically informed the police. Even Desh Raj does not mention presence of this witness. Even mother admits that when she reached the spot, she found Sushil Kumar to be unconscious. Now if Sushil Kumar himself had informed about the incident of stabbing by Akshay Kumar then obviously, her version cannot be relied upon for the purpose of establishing guilt of the accused. In any event, we find her statement not to inspire confidence. She has not deposed truthfully. She states that deceased could not be taken to the Zonal Hospital at Dharamshala for the reason that no vehicle was available. But then she forgets that deceased was in fact taken to P.H.C. in a vehicle. He could have been conveniently taken in the same vehicle to Dharamshala also. In Court she states that doctor was informed about the incident which in fact is not the prosecution case. She was confronted with her previous statement recorded by the police u/s 161 Cr.P.C. wherein this version does not stand recorded.

Thus, it can not be said that prosecution has been able to establish guilt of the accused, beyond reasonable doubt, by leading clear, cogent, convincing and material piece of evidence. Suspicion alone can not be a ground for convicting a man. Suspicion is not proof. Unfortunately, on the question of stabbing, independent witnesses have not supported the prosecution. On the contrary they lend credence to the defense taken by the accused. PW-2, PW-3 and PW-9 have separate and different version to narrate about the place, time, nature and the manner of occurrence of incident. Who is speaking the truth, whether complete or half, is not discernible from the record. Also report of the Forensic Science Laboratory does not link the accused to the crime. The alleged disclosure statement also can not be said to have been proved in accordance with law.

Hence, it can not be said that prosecution has been able to prove its case, beyond reasonable doubt, by leading clear, cogent, convincing, reliable and material piece of evidence to show that it was the accused Madan Kumar who had given blows to deceased Sushil Kumar resulting into his death.

The accused has had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down in Md. Ankoos and Others Vs. The Public Prosecutor, High Court of A.P., , it can not be said that the Court below incorrectly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice. No ground for interference is called for. Present appeal is thus dismissed. Bail bonds, if any, furnished by the accused are discharged.