State of Himachal Pradesh vs Naresh Alias Chuhra

Justice Sanjay Karol, Judge

For offences, which are alleged to have been committed on 9th February, 2005, accused was put to trial. In terms of judgment dated 26th December, 2005, passed by Sessions Judge, Sirmour District at Nahan, in Sessions Trial No. 17-ST/7 of 2005, titled as State of Himachal Pradesh versus Naresh, accused stands acquitted of the charged offences. It is the case of prosecution that Prem Chand (PW-3) had two brothers Tula Ram (deceased) and Gangu Ram, who used to reside in village Dhaula Kuan, Tehsil Paonta Sahib, District Sirmour. Deceased was unmarried and used to reside in a house adjoining to the house of Prem Chand. Gangu Ram was having two sons, i.e. present accused Naresh and his accomplice Ram Singh (Juvenile). On 9th February, 2005, at about 7 p.m. deceased, was sitting in his house alongwith Kumari Pooja (PW-2) daughter of Prem Chand (PW-3). At that time, present accused and Ram Singh came started beating to Tula Ram with the dandas, which they were carrying in their hands. As a result of the same, Tula Ram sustained injuries and started bleeding. Hearing his cries and commotion, PW-3 and neighbour Devi Dayal (PW-11) reached the spot. The incident was also witnessed by them. Thereafter, Prem Chand called driver Rajesh (PW-9) and requested him to take Tula Ram to the Hospital at Paonta Sahib, where Dr. K.L. Bhagat (PW-8) examined and further referred the deceased to the hospital at Nahan. Dr. Bhagat issued MLC (Ex. PW-8/A). Tula Ram was thereafter taken to Zonal Hospital, Nahan, where unfortunately he succumbed to his injuries. Dr. R.K. Baria (PW-7) conducted postmortem of the dead boyy of the deceased and issued postmortem report (Ex. PW-7/B). In the meanwhile, police was telephonically informed about the incident at Police Station Paonta Sahib and Head Constable Raj Kumar (PW-14) went to the Community Health Centre at Paonta Sahib, where he moved application (Ex. PW-8/B) for recording the statement of Tula Ram, but the doctor did not certify him fit for the said purpose. Simultaneously, official of Police Post Majra were also informed on telephone about the incident and police officials, namely Gangbir Singh (PW-12), Satpal (PW15) and Gurbax Singh (PW-18) proceeded to the spot. Gurbax Singh (PW-18) took charge of the investigation. He went to the hospital and prepared inquest report (Ex. PW2/B), got postmortem of the dead body conducted and recorded statement (Ex.PW-2/A) of Prem Chand (PW-3), u/s 154 of the Code of Criminal Procedure, which was also signed by Kumari Pooja (PW-2). The said statement was sent to Police Station, Paonta Sahib, where FIR No. 49, dated 10th February, 2005 (Ex. PW-17/A), under Sections 452, 302 and 34 of the Indian Penal Code was registered. The spot was got photographed from Rajneesh (PW-1). On the spot police recovered samples of blood stained soil vide recovery Memo (Ex. PW-4/A) and seized two dandas (Ex. P-6 and P-7) vide recovery Memo (Ex. PW4/B). Recovered articles, including viscera, were sent to the Forensic Science Laboratory, Junga and report (Ex. PW18/C) of Chemical Examiner was obtained by the police. Police also recorded statements of the relevant witnesses. Investigation revealed complicity of the accused to the crime. Hence, challan was presented in the Court. The instant trial pertains only to accused Naresh, who was a major and his accomplice Ram Singh who is a juvenile must have been tried in accordance with law.

Accused was charged for having committed offences, punishable under Sections 452 and 302 of the Indian Penal Code, to which he did not plead guilty and claimed trial.

In order to prove its case, prosecution examined as many as nineteen witnesses and statement of the accused, u/s 313 of the Code of Criminal Procedure was also recorded, in which he took up a defence of innocence and pleaded that the deceased was in fact beaten up by Prem Chand, who wanted to grab the property.

The Court below, after appreciating material on record, acquitted the accused of the charged offences. Hence, the present appeal.

We have heard Shri Vivek Singh Thakur, Additional Advocate General on behalf of the State as also Shri Manoj Thakur, Advocate, on behalf of the accused. We have also minutely examined the testimonies of the witnesses and other documentary evidence placed on record by the prosecution. Having minutely examined the record, we are of the considered view that no case for interference is made out at all. We find that the judgment rendered by the trial Court is well reasoned and is based on complete and proper appreciation of evidence (documentary and ocular) placed on record. There is neither any illegality/infirmity nor any perversity in the same.

Identity of the deceased is not in dispute. The fact that he was administered medical treatment at Civil Hospital, Paonta Sahib on 9th February, 2005 at 10.30 p.m. also cannot be disputed. In any event it stands proved through the testimony of Dr. K.L. Bhagat (PW-8), who issued MLC (Ex. PW-8/A). Upon examination, doctor opined as under:

The patient was unconscious, pupil fixed reacting to deep stimuli, respiration was shallow, swelling in the occipital region. Vomiting positive (Advised CT scan head).

Cut lacerated would on the skull in the fontal region of skull 3 cm in length 1/2 cm in width, 1/2 cm in depth.

Swelling on the right hand (advised X-ray right hand).

In spite of best efforts of the police, statement of the deceased could not be recorded, as he was declared unfit.

Undisputedly, same night, deceased was taken to Zonal Hospital, Nahan. That deceased Tula Ram died on account of the injuries sustained by him is also not in dispute. Postmortem of the dead body was conducted by Dr. R.K. Baria (PW-7), at Zonal Hospital, Nahan. The same stands established through his testimony and report (Ex. PW-7/A). The said doctor opined that following injuries were found on the body of the deceased:

The deceased was about 50 years of age, thin built, having two curved laceration on medial side of left thigh 4 cm, 4.5 cm long respectively in the middle of the thigh.

Laceration of 1 cm long on the lateral aspect in the middle of the right thigh.

A laceration of the size of 7 mm near right antero superior aspect of iliac spine.

Lacerated wound 1 x 1 cm on lateral aspect of right wrist.

Beside the injuries mentioned above there was found different injuries on the occipital region as mentioned below:

There is a lacerated curved wound 4 cm long on the left occipital region skin deep and bony surface felt (felt) and depth is more in the middle.

There was swelling surrounding this wound extending from left occipito parietal region towards right side of the occipital region.

There is another injury on occipital region, which is 10 cm. antero lateral to the injury No. 1 on the occipital region, which is 1.5 cm long which was skin deep.

There was small laceration on the right occipital protuberance, which was also skin deep.

There was dot laceration in the middle of occipital bone near Lambdrid suture in the middle.

There was linear lace ration of 8 mm. size in the middle of the line of saggital suture."

Doctors were of the firm view that injuries could be caused with dandas (Ex. P-6 and P-7).

The question, which needs to be examined, is as to whether such injuries were actually inflicted by the accused and his accomplice and as to whether dandas belonged to them or not.

In order to establish the same, out attention is invited to the testimonies of Kumari Pooja (PW-2), Prem Chand (PW-3), Devi Dayal (PW-11), who allegedly witnessed occurrence of the incident and also testimony of Ved Prakash (PW-4), Pawan Kumar (PW-5) and Dayal Chand (PW-10), in whose presence weapons of offence and other incriminating material were recovered by the police on the spot. Reference is also made to the testimony of Rajesh (PW-9), who allegedly took the deceased in his car from the spot to the hospital at Paonta Sahib.

Significantly, out of the aforesaid seven witnesses, PW-4, PW-5, PW-9, PW-10 and PW-11 have not supported the prosecution case at all. They were declared hostile and cross-examined by the Public Prosecutor. Though we shall separately deal with their statements, but however close scrutiny of their testimonies do not, in any manner, reveal that they have falsely deposed in Court to favour the accused.

In statement (Ex. PW-2/A), it is recorded that on 9th February, 2005 at about 7 p.m., when deceased Tula Ram was sitting in his room, sons of Gangu Ram, i.e. the present accused Naresh and accomplice Ram Singh (Juvenile), armed with dandas, forcibly entered the room and dragged him (deceased) outside and started beating him with dandas, due to which he became unconscious and fell on the ground. On seeing Prem Chand (PW-3), accused ran away from the spot. However, in Court, we find that both the signatories to the statement have given a slightly different version, which may not be fatal to the case. But then there are material contradictions in their statements.

Prem Chand (PW-3) has deposed that at the time when his daughter Kumari Pooja (PW-2) was inside the room with deceased Tula Ram, accused alongwith his brother entered and gave beatings to the deceased. Thereafter, deceased Tula Ram was dragged outside the room and also beaten up mercilessly. He states that he witnessed occurrence of the incident. Now significantly, he states that "I had seen them beating and out of fear I hide myself in the bushes". To us, it appears that he has falsely deposed in Court. His conduct is most unnatural. Police did not find any bushes on the spot. After all, accused was armed with dandas and life of his own daughter was in danger. Why would a father watch the incident hiding behind the bushes when there is threat to the life of his daughter and brother? He is an able bodied person. He could have retaliated but chose not to do so. There is no explanation on record on this count. The witness further states that the incident was witnessed by Dayal Chand (PW10), who was sitting in the room adjoining to the house of deceased Tula Ram, which version stands contradicted by PW-10, who in his unrebutted testimony has deposed that he was not on visiting terms with deceased Tula Ram. He states that he came to know about the murder of Tula Ram only after two-three days of his death. We further find that PW-3 has deposed that deceased was taken to the hospital in the car brought by "Mintu". Now who is this "Mintu" has not been explained on record. As per prosecution version, the deceased was taken to the hospital from the spot by Rajesh (PW-9). It is not the case of PW-3 or for that matter of prosecution that Rajesh and Mintu are one and the same person.

In fact, we are of the view that PW-2 was not present on the spot. This we say so also for the reason that when he took the deceased to the hospital at Paonta Sahib, he did not report the matter to the police there. After all deceased was examined by the doctor at about 10.30 p.m. on 9th February, 2005, which fact is evident from MLC (Ex.PW-8/A). Statement u/s 154 of the Code of Criminal Procedure was recorded only on 10th February, 2005 at 11.30 a.m. and that too not at Paonta Sahib but by the officials of Police Post, Majra. It is not the case of this witness that police was either siding with the accused or despite his best efforts police did not record his statement. Medical record (Ex. PW-8/A) also does not reveal that deceased was in fact brought to the hospital by this witness. The cause and the manner in which the deceased received injuries is also not disclosed to the doctors or witnesses or recorded at the hospital.

Coming to the statement of PW-2, we find that she is a child witness, aged 8 years. We find that with regard to the actual occurrence of the incident she has given a version, which is slightly different from that of her father. However, this fact has not weighed with us at all. She has deposed that at the time when accused came armed with dandas, she was sitting inside the room with the deceased, but then she states that the accused gave beatings to the deceased with dandas inside the room and thereafter dragged him outside. When she cried, her father came and the accused ran away from the spot. Unlike her father, she does not specifically state that the accused gave beatings to the deceased after he was dragged outside the room. Most significantly, she states that she remained with her father in the hospitals both at Paonta Sahib and Nahan and police recorded their statement only in the morning of 10th February, 2005. She states that from Paonta Sahib to Nahan they went in a Government vehicle. Now the question, which arises for consideration is, why is it that police had to wait till the morning of 10th February, 2005 for recording the statement of this witness. We find that this witness has, to some extent, rendered the defence of the accused to be probable. She admits it to be correct that on the day of occurrence, her father and ''Taya'' (uncle) (here she is referring to deceased as ''Taya'') had quarrelled. She admits that her uncle had given a blow of rod to her father, though she denies that her father had also given beatings to her uncle. She admits that even at Paonta Sahib police had inquired about the cause of incident from her father and his statement was also recorded there, but then there is no such statement on record. Then where is it? Is it that police has concealed the same or that she is telling lies? She admits that the room, which belonged to deceased Tula Ram, stands rented out by her father and after the death of the deceased her mother has also returned from her parental house and joined the company of her father. She also admits that the house of deceased Tula Ram is now being used by her father. Most significantly, she admits it to be correct that "my father asked me to name the accused or the person, who killed my uncle". Thus her statement is not independent. The witness has not only contradicted the statement of her father but she has also contradicted her own version, which fact was so observed by the trial Court itself and a question was put to the witness, which we find it significant and necessary to reproduce herein below:

Court Q. During the course of re-examination you have stated that you have seen the accused, giving beatings to the deceased inside as well as outside the room, whereas, in the cross-examination, you stated that you remained inside the room, when deceased was taken outside the room. Which of your statement is correct?

Ans: My both the statements are correct, since, I saw the accused beating the deceased outside the room while I came outside the room.

Thus, we find that there are major contradictions and unexplained circumstances in the statements of these witnesses, rendering their testimonies to be unreliable, untrustworthy and the prosecution version to be doubtful.

Significantly, both these witnesses admit that there is house of one Shri Saini, which is just adjoining to the house of deceased Tula Ram. PW-2 admits that some of the family members of Shri Saini had also witnessed the occurrence of the incident. Now police/prosecution has not interrogated/examined anyone of them. Considering the stand taken by PW-2 and the defence taken by the accused, in our considered view, examination of all these persons, being independent parties, was absolutely necessary.

Witnesses Dayal Chand and Devi Dayal are not immediate neighbours. Also they have not supported the prosecution case at all. Dayal Chand (PW-10) states that he did not witness the accused giving beatings to the deceased. He was cross-examined on this point, but there is unrebutted testimony of this witness to the effect that actually he is a resident of another village and his house is situated at a distance of 100-200 metres from the house of the accused. Why is it that he did not intervene or took steps of saving the life of the deceased? Now prosecution has not explained the circumstances under which this witness was present on the spot and that too in the late hours of the evening. After all incident took place in the rural area, where normally agriculturists return home before sunset. The alleged incident took place at 7.30 p.m. in the month of February by when sun is already set. The witness admits that his son is in the Police Department. To us, it appears that this witness has been introduced by the police.

Devi Dayal (PW-11) states that at about 9 p.m. Prem Chand called him to his house and when he went there he saw deceased Tula Ram lying injured in an unconscious state. He called Pradhan Dev Prakash. This witness also was declared hostile and cross-examined by the Public Prosecutor. Crucially, in his unrebutted testimony he admits that his house is at a distance of 100- 200 metres from the spot. Admittedly, he has not witnessed the occurrence of the incident. He does not state that Prem Chand had narrated to him, how deceased Tula Ram sustained injuries. We further disbelieve his testimony for the reason we have disbelieved the testimony of PW-10.

Rajesh (PW-9) allegedly took the deceased to the hospital at Paonta Sahib. He was also declared hostile and cross-examined by the Public Prosecutor. Regardless we find that there is unrebutted testimony of this witness to the effect that his house is situated at a distance of 100- 200 metres from the place of occurrence of the incident. Now PW-10 admits that this witness is in fact his grandson. Hence, to us, it appears that this witness has been introduced subsequently by the police and prosecution has not examined Mintu, who, as per version of PW-2 and PW3, had taken the deceased to the hospital. Police has also not shown by which vehicle the injured was taken from Paonta Sahib to Nahan.

Coming to the recovery of weapons of offence, we find that Ved Prakash (PW-4), witness to the recovery Memo has not supported the prosecution case. The witness was also cross-examined by the Public Prosecutor. There is unrebutted testimony of this witness to the effect that he has appeared as a witness in three cases of the police. He appears to be a stock witness. This witness also has his house at a distance of about 200-250 metres from the spot.

Why is it that police has not associated immediate neighbours during investigation or examined such persons in Court has not been explained. Investigating Officer has deposed that the Deputy Superintendent of Police and the SHO of Police Station Paonta Sahib had also reached the spot. They were not examined. What part these senior level police officials took during investigation has not been disclosed. All this further renders the prosecution story to be extremely doubtful.

As per prosecution case, blood soiled samples were taken from the spot by the Investigating Officer Gurbax Singh (PW-18) in the presence of independent witness Pawan Kumar (PW-5). We find that no seal with which parcels were sealed was produced in Court. Seal impression ''T'' was allegedly sent to the Forensic Science Laboratory, Junga, through Sanjay Kumar (PW-19), but then the said person in Court states that Raghubir Singh (PW-13), Incharge Malkhana, Paonta Sahib had handed over to him six parcels, some of which were sealed with seal impression ''T'' and some were sealed with seal impression ''ZH''. He does not specifically mention that which of the parcels was having seal impression ''T'' and seal impression ''ZH''. Raghubir Singh in Court states that he received nine parcels. Four parcels were deposited by SHO Gurbax Singh on 10th February, 2005 with seal impression ''T'' and on 12th February, 2005 HC Gangbir Singh (PW-12) deposited five parcels which were sealed with seal impression ''ZH''. Now if this were so then why is it that only six parcels were handed over to LHC Sanjay Kumar (PW-19) for depositing the same at Forensic Science Laboratory, Junga. Significantly, Chemical Examiner''s report (Ex. PW18/B) nowhere refers to seal impression ''ZH''. The group of the blood found on the dandas and sample of the blood stained soil was not certified to have been matached with that of the deceased. Hence, link evidence, in our considered view is extremely weak.

Significantly, in the instant case deceased had received severe injuries at about 7.30 p.m. on 9th February, 2005. He was administered medical treatment same day in the hospital at 10.30 p.m., from where he was taken to the hospital at Nahan. This also happened same day. He was alive at that time. It has come on record that officials from Police Station, Paonta Sahib, and Police Post Majra had already visited the hospital, yet police failed to record statement of any one of the witnesses or register the case, despite the information received by the police at Police Post, Majra, with regard to the injuries sustained by the deceased, which information was recorded at 7.30 p.m. on 9th February, 2005 in the Rojnamcha (Ex. PW-12/A). Crucially this document does not disclose complicity of the accused to the alleged crime.

Prosecution has also failed to show that dandas in question actually belonged to the accused. There was nothing special, particular or peculiar about the identity of the same. They are normally available in every household in the village. Recovery of the same from the accused has not been clearly proved by the prosecution.

Thus, it cannot be said that prosecution has been able to prove its case, beyond reasonable doubt by leading clear, cogent, convincing and reliable piece of evidence so as to prove the charged offences.

For all the aforesaid reasons, we find no reason to interfere with the well reasoned judgment passed by the trial Court. The Court has fully appreciated the evidence placed on record by the parties. The accused has had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down by the Apex Court in Md. Ankoos and Others Vs. The Public Prosecutor, High Court of A.P., and State of Rajasthan Vs. Shera Ram @ Vishnu Dutta, , it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged.