State of Himachal Pradesh vs Rakesh Pun

Justice Sanjay Karol, J.—For an offence, which is alleged to have been committed on 17.9.2003 accused was put to trial. In terms of judgment dated 31.8.2004, passed by the Ld. Addl. Sessions Judge, Fast Track Court, Shimla, H.P. in S. Trial No. 26-S/7 of 2004/2003, titled as State of H.P. versus Rakesh Pun, accused stands acquitted of the charged offences. It is the case of prosecution that Sh. Suresh Chauhan (PW-5) had employed Sh. Nand Lal (PW-4) to supervise construction work carried out on Kotkhai - Kiari road. In all eleven Nepali labourers were employed who were supervised by PW-4. These labourers, including PW-4 were staying in two hutments adjoining each other. On 17.9.2003 at about 6.30 p.m., Sh. Nand Lal asked one of the labourers i.e. Sh. Ranjit to get rashan from one of the shops at Kupdi Nala. Sh. Ranjit returned at about 7.00 p.m. along with Sh. Dhan Bahadur, who hailed from Nepal and was also related to both Sh. Ranjit and accused Rakesh Pun. After some time accused entered one of the hutments where labourers were staying and started arguing over some past dispute. This led into a scuffle and accused gave beatings to Sh. Dhan Bahadur. He threw him on the floor and gave him blows with fists and kicks on the abdomen, chest, face and head. He also gave a blow with a hammer on the leg of Sh. Dhan Bahadur. When the occupants of the hutments, including Sh. Nand Lal tried to intervene they were prevented. After some time it was noticed that Sh. Dhan Bahadur became unconscious and in fact died. Accused was taken away to the other hutment by Sh. Prakash who was also working as a labourer. Sh. Nand Lal reported the incident on telephone to the police at about 10.30 p.m. Rapat Roznamcha (Ext. PW 14/A) was recorded by ASI-Vikram Chauhan. Police commenced investigation and same day statement of Sh. Nand Lal (Ext. PW 4/A) u/s 154 Cr. P.C. was recorded at 11.50 p.m. by the police on the basis of which F.I.R. No. 81/2003 (Ext. PW 11/A), dated 18.9.2003 was registered at Police Station Kotkhai by ASI Jai Gopal (PW-11) u/s 302 IPC. During the course of investigation police prepared inquest reports (Ext. PW 1/A and 1/B), got the spot photographed, sent the body for post mortem to Community Health Centre, Kotkhai, which was conducted by Dr. V. K. Mishra (PW-1) who gave his report (Ext. PW 1/C), collected hammer and other material evidence on record. Report (Ext. PA) of the Forensic Science Laboratory was also obtained by the police. With the completion of investigation challan was presented in the Court for trial.

Accused was found to have committed murder of Sh. Dhan Bahadur hence he was charged for having committed an offence punishable u/s 302 IPC and also voluntarily caused simple hurt to Sh. Ranjit and thus committed an offence punishable u/s 323 IPC to which he did not plead guilty and claimed trial.

In order to prove its case, prosecution examined as many as 14 witnesses and statement of the accused u/s 313 Cr. P.C. was also recorded in which he took the following defence:-

This is a false case against me. In fact, deceased (Dhan Bahadur) had attacked my brother Ranjeet and myself when he was under the influence of liquor and in order to save ourself we had to grapple with him and during this process he fallen on the floor of the shed/room and thereafter did not get up.

Court below acquitted the accused of the charged offences, hence the present appeal.

Dr. V.K. Mishra (PW-1) conducted post mortem of Sh. Dhan Bahadur and opined that at the time of death, deceased had consumed alcohol. He died due to blunt trauma chest leading to haemothorax causing haemorhagic shock. The Doctor further opined that injuries (four in number) suffered by the deceased could be inflicted in a scuffle. He specifically opined that injury on the body could not have been sustained with a hammer (Ext. P2).

Prosecution also proved injury sustained by Sh. Ranjit, through testimony of Dr. Rakesh Chauhan (PW-2) and Dr. K.P. Kalia (PW-3). Significantly Sh. Ranjit was found not to have consumed alcohol. It is pertinent to notice at this point in time that except for Sh. Nand Lal (PW-4), none of the spot witnesses including injured Sh. Ranjit have been examined in Court. PW-4 is silent about the injury sustained by Sh. Ranjit. Hence second charge cannot be said to have been proved by the prosecution.

Coming to the first charge of murder, Sh. Nand Lal (PW-4) no doubt has supported the prosecution but we find his testimony not to inspire confidence. His testimony is full of improvements, exaggerations and embellishments. His conduct and behaviour is most un-natural. To us, it appears that he was not present on the spot at the time of alleged incident.

His version in Court that accused had given a blow with a hammer to the deceased is neither substantiated nor corroborated by any evidence. In fact it stands belied by medical evidence. Further why did he leave the place of occurrence and not take steps for getting medical aid to the deceased? Why did he not call the neighbours? Why did he not initially inform about the incident to his employer? Significantly there was no threat to his life. He simply states that he informed the police on telephone from " a shop" but he does not disclose particulars of the place or the owner. It is not his case that there was no telephone available nearby. He further states that he came in a truck (tipper) to the bazaar at Kotkhai and met the police there. He states that in the bazaar police recorded his statement u/s 154 Cr.P.C. Now this version stands materially contradicted by ASI-Vikram Chauhan (PW-14) and SI-Yogesh Dutt (PW-13) who specifically states that statement of PW-4 was recorded after they reached the spot of occurrence of incident. That apart and most importantly, PW-4 specifically admits that at the time when he called the police he was not aware of the name of the deceased which fact he learnt only in the morning of 18.9.2003 when relatives/colleagues of the deceased arrived at the spot at 9 a.m. Now definitely this witness is lying. He has contradicted himself. If he was not aware of the name of the deceased then how is it that he informed the police about the same, which fact is specifically recorded in the roznamcha (Ext. PW 14/A), statement (Ext. PW 4/A) as also FIR (Ext. PW 11/A) which undisputedly was registered on 18.9.2003 and prior to 9.30 a.m. which is the time when F.I.R. was dispatched to the concerned Magistrate. He is not even aware of the name of labourers whom he was supervising. He was confronted with relevant portion of his statement (Ext. PW 4/A) to prove that he has improvised, resiled and exaggerated from his previous statement. We also find that his statement is at variance with other medical record. He states the height of the deceased to be four feet and five inches whereas the height of the deceased is actually five feet seven inches which stands proved through the testimony of PW-1. Even with regard to body structure of the deceased there is variation in the testimony of these two witnesses. He does not state the name of the place or the shop owner where he had sent Sh. Ranjit to get the ration. This only shows that PW-4 was in fact not present on the spot at the time of the incident. Hence testimony of this witness does not inspire confidence and cannot be relied upon to hold the accused guilty of the charged offences.

We find that even though complicity of the accused to the alleged crime was made known to the police on the date of the alleged incident itself, yet police did not arrest him till 11.30 a.m. the following morning. It appears that police was not sure of the exact events which took place on the spot. Accused was otherwise available on the spot. It is not the case of prosecution that he was absconding or did not co-operate with the police. In the instant case possibility of preparation of false record by the police also cannot be ruled out. This we say so for the reason that it is the version of PW-4 that he telephonically informed the police at about 7 - 7.30 p.m., whereas, police records the timing of the call to be 10.30 p.m.

Prosecution has also not examined any one of the other independent witnesses present at the spot. The F.S.L. report also does not link the accused to the alleged crime.

The deceased was found to be under influence of alcohol. This only renders the defence of the accused to be probable.

Having perused the testimony of prosecution witnesses on record we find that no case for interference is made out. It cannot be said that prosecution has been able to prove its case, beyond reasonable doubt, by leading clear, cogent, convincing and reliable material on record. 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 cannot be said that the Court below has 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.