State of Himachal Pradesh vs Shankar Singh, Gopal Singh and Kishori Lal

Justice Sanjay Karol, Judge

For an offence, which is alleged to have been committed on 10th July, 2000, accused were put to trial. In terms of judgment dated 20th April, 2006, passed by Sessions Judge, Bilaspur, in Sessions Trial No. 29 of 2001, titled as State of Himachal Pradesh versus Shankar Singh and others, accused stand acquitted of the charged offence. It is the case of prosecution that on 10th July, 2000, at about 8.30 p.m., Shri Dharender Pal (PW-5) (hereinafter referred to as injured at certain places), parked his truck, at his house in village Kothipura (Bilaspur). He went to the nearby shop to purchase groceries. Suddenly, Shankar Singh (accused No. 1), Gopal Singh (accused No. 2) and Kishori Lal (accused No. 3), who were armed, attacked him. Accused Kishori Lal caught hold of the injured, while accused Shankar Singh and Gopal Singh gave blows with a knife to him, as a result of which he sustained injuries and fell on the ground. The incident was witnessed by Shri Kuldeep Singh (PW-4), Shri Param Dev (PW-6) and Shri Lakhanpal (PW-10), who took the injured to the shop of chemist Shri Prakash Chand (PW-7), who advised that injured be taken to the hospital. In the meanwhile, father of the injured, Shri Basant Ram (PW-11), also arrived at the spot and then all of them took the injured to the District Hospital at Bilaspur. Police was informed about the incident and Inspector Anant Ram (PW-12) reached the hospital, where he recorded statement (Ex.PA) of Shri Kuldeep Singh (PW-4), u/s 154 of the Code of Criminal Procedure, on the basis of which FIR No. 153, dated 10th July, 2000 (Ex. PW-2/A), was registered by HC Ram Lal (PW-2) at Police Station Sadar, District Bilaspur, H.P. During investigation, police arrested the accused persons and accused No. 1 Shankar Singh made a disclosure statement (Ex.PW-11/A) in the presence of Shri Jagan Nath (PW-9) and one Shri Bhag Singh. He also led the police to the place where they had concealed the weapon of offence, which was recovered in the presence of the said witnesses. Police also carried out investigation on the spot. In the hospital, injured was medically examined by Dr. J. Goswami (PW-8), who issued MLC (Ex. PW-8/A). Blood stained clothes of the injured were also taken into possession by the police vide Memo (Ex. PW-1/A). Investigation revealed complicity of the accused to the alleged crime. Hence, challan was presented in the Court for trial by Sub Inspector Ishwar Dass (PW-3).

Accused were charged for having committed offence, punishable u/s 307, read with Section 34 of the Indian Penal Code, to which they did not plead guilty and claimed trial.

In order to prove its case, prosecution examined as many as twelve witnesses and statements of accused, u/s 313 of the Code of Criminal Procedure were also recorded, in which they took up the following common defence:

I do not want to say anything more. I am innocent. I have not committed any offence as alleged against me and has been involved in a false case. The complainant party had attacked some person standing at the Bus Stop at Kothipura. As criminal case has already been registered against the complainant party, which is pending adjudication.

Accused also examined five witnesses.

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

We have heard Shri R.K. Sharma, learned Senior Additional Advocate General, assisted by Shri J. S. Guleria, learned Assistant Advocate General, on behalf of the State as also Mr. Umesh Kanwar, 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.

Dr. J. Goswami (PW-8) has proved on record MLC (Ex. PW-8/A), which reveals that the injured sustained the following injuries:

i) 1 inch long stab injury left side of abdomen 3" to the left of navel in line, obliquely placed, bleeding plus.

ii) 1 cm. long cut injury left hip. Bleeding slight

iii) 1 cm. long cut injury left side of the chest wall, bleeding slight.

Significantly in his cross-examination, the doctor admits that even though he had opined that surgeon be called for probing the length and width of the wound in the abdomen and an opinion of an expert be obtained, but however, MLC (Ex.PW-8/A) reveals that no such opinion was obtained. In his uncontroverted testimony he further admits it to be correct that dimensions of the depth and breadth of the injury was required to be given by the surgeon and there is no reference about the same in the MLC. He himself admits that injuries No. 2 and 3 were superficial in nature. Though in his examination-in-chief he states that injury No. 1 was grievous and dangerous to life, but in his cross-examination he admits that he is not in a position to comment whether the edge of injury No. 1 was averted or inverted and also comment upon the position of the assailants and the victim at the time of causing of such injury. Significantly, the weapon of offence, i.e. knife, was not shown to the doctor to establish that injuries found on the body of the injured could have been caused with the same.

Now, in the instant case, why is it that prosecution did not get the injured examined from the Surgeon in spite of specific medical opinion in that regard, is not clear. This fact has not been substantially explained by the prosecution. Medical opinion itself creates a doubt with regard to the nature of the injuries and the fact, whether they could have been fatal or not.

According to the prosecution and the testimonies of witnesses present on the spot, i.e. Shri Kuldeep Singh (PW-4), Shri Dharender Pal (PW-5) (injured), Shri Param Dev (PW-6) and Shri Lakhan Pal (PW-10), the injured was given stab wounds with a knife. At that time he was wearing his clothes, i.e. shirt (Ex.P-1), pants (Ex.P-2), vest (Ex.P-3) and underwear (Ex. P-4). Allegedly blows were given to him on his abdomen and chest, when he was wearing his clothes (Ex. P-1 to Ex.P-4). Prosecution has recovered the pants, shirt, underwear and vest of the injured in the presence of Shri Devnu Ram (PW-1). Now surprisingly, as is so admitted by Inspector Anant Ram (PW-12), no corresponding marks of cuts/holes were found on the shirt and vest of the injured. Also, doctor did not notice any such marks of cut on the clothes worn by the injured at the time of his medical examination. Now, this renders the prosecution story, with regard to the manner in which accused gave blows to the injured, to be doubtful.

Injured Dharender Pal (PW-5) admits that neither he harbours any animosity nor does he have friendship with the accused persons.Genesis of the prosecution story that accused, without any provocation suddenly attacked the injured appears to be doubtful. Prosecution has failed to even prima facie show any motive for the accused to have attacked the injured. In our considered view, this version of the injured renders the defence of the accused to be probable, as it has come on record through the unrebutted testimonies of complainant witnesses, that criminal cases stand registered against the complainant party much prior to occurrence of the incident and also with regard to the incident. Criminal trials in relation to various offences were pending against them as on that date. Complainant party seems to be of a quarrelsome nature.

There is yet another fact, which to our mind, has rendered the prosecution case to be doubtful. It is an admitted case of the parties that on the spot 10-30 persons (as per different versions of different prosecution witnesses) were present either at the time of occurrence of the incident or immediately thereafter. Now, except for the relatives, friends or employees of Shri Basant Ram (PW-11), who is father of the injured, none of the independent persons have been associated by the police during investigation or examined in the Court during trial. Examination of independent persons, in the instant facts and circumstances, especially when there were allegations and counter-allegations and also registration of cross cases, in our considered view, was necessary. This we say so more so for the reason that Shri Prakash Chand (PW-7) in his unrebutted testimony has categorically deposed that on 10th July, 2000 at about 8.30 p.m., injured who was having injuries on his stomach and back, was brought to his shop.He advised that the injured be taken to District Hospital. He further states that "I was not told as to who had caused injuries to Dhraneder Pal (Dharender Pal)". Significantly, it has come in the testimony of Shri Kuldeep Singh (PW-4), Shri Lakhanpal (PW-10) and Shri Basant Ram (PW-11) that they took the injured to the shop of Shri Prakash Chand. It is not the case of the prosecution that identity of the assailants was not known to them. Some of them had seen the occurrence of the incident. If this were so, then why is it that they did not disclose the manner in which the incident occurred or identity of the accused, to this person who undisputedly is not related to either of the parties.

Significantly, Shri Kuldeep Singh (PW-4), who first lodged the complaint (Ex. PA), has not supported the prosecution in Court. He simply states that he and the injured were present at Kothipura, when many persons gave beatings to the injured. He could not identity them as it was dark at that time. The witness was declared hostile and cross-examined by the Public Prosecutor, which also did not reveal complicity of the accused to the alleged crime. We do not find that in Court he has falsely deposed. In his unrebutted testimony, this witness states that injured was carried from the shop of Shri Prakash Chand to the Hospital in a truck in the presence of Shri Basant Ram, which fact is also not disputed by anyone. Now if this were so, then why is it that Shri Basant Ram himself did not report the matter to the police. After all injured was his son. He had suffered injuries with knife and his life was in danger. Also, his other son Shri Lakhanpal was with him. This fact further renders the prosecution story to be doubtful.

Shri Dharender Pal (PW-5), in his examination- in-chief has deposed as under:

I was the driver of truck No. HIB-2881 and my father was the owner of the said truck. On 10-7-2000 I brought coal in the said truck from Kiratpur and had parked my truck at my house in village Kothipura on the said night. At about 8.30 p.m. my father had sent me to bring tea and sugar from the nearby shop. Truck of Sunder Singh was parked near the shop at Kothipura. At the same time, Balbir came there and I talked with him. In the meanwhile, Shanker, Kishore and Gopal, accused perfsons came there from the downward. Kishore caught hold of me and Shanker and Gopal gave blow of knife to me. I sustained injuries on my abdomen, chest and back. As a result of which the injuries, I fell down. The accused had also quarrelled with me earlier sometime. Kuldip, Lakhanpal and Sunder Lal had taken me to the shop of Prakash Chand who had advised us to take me to the District Hospital and I was taken to the District Hospital by the said persons. The accused had inflicted the blows to me to kill me.

Now, police neither interrogated nor examined the said Balbir (mentioned by the injured) in Court. Why so? Has not been explained. Particularly when PW-4 had not supported the prosecution, examination of this person was absolutely necessary. Be that as it may be, in his cross-examination, injured admits that civil and criminal cases were pending against Shri Basant Ram in various Courts at Bilaspur. He admits that he regained consciousness after about two-three days and police recorded his statement in the Hospital after three-four days. He admits that his version that the accused had quarrelled with him earlier was not disclosed by him to the police as is so stated by him in the Court for the first time. He also admits that he did not state to the police that the accused gave blows with an intention of taking his life. Further, his version that his statement was recorded by the police after three-four days of the incident stands belied and contradicted by the version of the Investigating Officer, who has categorically deposed that statement of the injured was recorded on 11th July, 2000, at the time when he was declared fit by the doctor. We may only notice that either of these two witnesses has falsely deposed in Court. Significantly, certification of the doctor is not on record. In fact, it is the stand of the prosecution that statement of the injured could not be recorded on 10th July, 2000, as the doctor had declared him unfit for such purpose. Unfortunately, prosecution has not placed on record such opinion of the doctor. Why so? has not been explained. In our considered view, for all the aforesaid reasons, injured cannot be said to be a reliable and trustworthy witness.

Prosecution has also tried to prove its case through the testimony of Shri Param Dev (PW-6), who was working as a Clerk in the District Language Office, Bilaspur. He simply states that on 10th July, 2000 at about 8-8.15 p.m. accused Kishori Lal caught hold of the injured and thereafter gave blows with a knife on the abdomen and chest. Accused Shankar Singh also repeated the same. Significantly, this witness does not even mention the name of accused Gopal Singh, reference of whom is categorically made by the injured. To us, it appears that this witness was not present on the spot. Also, he has not deposed truthfully. He was confronted with his previous statement (Mark A) recorded by the police, wherein he specifically mentioned the name of accused Gopal Singh who also gave blows with a knife to the injured. He specifically denies that no other son of Shri Basant Ram was present on the spot, which version of his stands belied and contradicted by Shri Lakhanpal (PW-10), who is borther of the injured and son of Shri Basant Ram. According to Shri Lakhanpal, he was not only present but also saw the accused give blows with a knife to the injured.

Shri Lakhanpal (PW-10), as is already noticed earlier, has supported the prosecution and has narrated the version so disclosed by the injured (PW-5), but we find even this witness not to be reliable and trustworthy. He has made several improvements and exaggerations/ embellishments in Court. He was confronted with his previous statement (Mark Z) recorded by the police and his version in Court to the effect that he had seen the accused quarrel with the injured not to be mentioned therein.

Coming to the version of Shri Basant Ram (PW-11), we find that he has deposed that he was informed by one Sanju to the effect that some quarrel had taken place between the injured and the accused persons. He immediately rushed to the spot and found injured to have been taken to the shop of Shri Prakash Chand. Now, significantly, this witness does not record presence of Shri Lakhanpal. This witness handed over clothes of the injured to the police. He also witnessed the disclosure statement (Ex. PW-11/A) allegedly made by accused Shankar Singh. He is also witness to the recovery of the weapon of offence. We find his testimony not to be trustworthy and reliable. He states that the injured regained consciousness only after five-six days of the incident, which version stands belied and contradicted both by the injured and the Investigating Officer. He categorically states that he does not know how the quarrel started and who were present on the spot. How can he say so? After all his son had witnessed the occurrence of the incident. This renders the genesis of the prosecution story to be extremely doubtful. Significantly, he states that his signatures were taken on the papers after recovery of weapon of offence. Categorically, he states that prior to the same his signatures were not taken by the police. Thus, this witness totally demolishes the prosecution case with regard to prior disclosure statement made by accused Shankar Singh.

On the question of recovery of weapon of offence, we are also of the view that there is contradiction. PW-11 states that knife was recovered at 12-1 p.m. on 16th July, 2000 at a place where there are bushes, which is at a distance of eight feet from the house of one Hari Ram. Now, significantly, another witness to the recovery, i.e. Shri Jagan Nath (PW-9) states that the recovery was effected at about 3-4 p.m. on 16th July, 2000. The discrepancy with regard to the timing may not be material but then this witness further states that knife was recovered from the bushes known as "Basutis", which were just at a distance of 2-3 yards from the house of Shri Sunder Lal. PW-11 categorically denies that recovery was effected from the bushes of "Basutis". Thus, these two material contradictions, being substantial and glaring, have rendered the prosecution case to be extremely doubtful with regard to the recovery of weapon of offence.

Coming to the testimony of Shri Anant Ram (PW-12), we find that this witness has not deposed truthfully in Court. Also, he has suppressed relevant material. Investigation was not carried out in the manner in which it was expected of a senior police official. He has not placed on record opinion of the doctor to the effect that the injured was not fit to make his statement in the Hospital on 10th July, 2000. His version that statement of the injured was recorded on 11th July, 2000 stands contradicted by the injured himself, according to whom it was recorded after four-five days of the incident. This witness categorically denies the fact that injured regained consciousness only after four-five days of the occurrence. There was no reason for him to have deposed in such a manner, as this fact could have been easily verified from the medical record.

Hence, in our considered view testimonies of the relevant prosecution witnesses being totally uninspiring in confidence cannot be said to be creditworthy and reliable.

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 that the accused persons, in furtherance of their common intention caused grievous hurt to Shri Dharender Pal (injured) by means of a knife with such intention or knowledge that the said act would have caused death of the injured.

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 have 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.