Himachal Pradesh High Court
State Of Himachal Pradesh vs Of on 19 September, 2016
Bench: Rajiv Sharma, Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 474 of 2009 Reserved on : 20.07.2016 .
Date of Decision: 19.09.2016 State of Himachal Pradesh .....Appellant Versus of Pawan Kumar & another ....Respondents Coram rt The Hon'ble Mr. Justice Rajiv Sharma, Judge. The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting?1 ____ For the Appellant: Mr. Vikram Thakur, Deputy Advocate General.
For the Respondents: Mr. Satyen Vaidya, Sr. Advocate with Mr. Vivek Sharma, Advocate.
___________________________________________ Vivek Singh Thakur, Judge Respondents have been acquitted vide judgment dated 22.04.2009 passed by learned Additional Sessions Judge in Sessions Trial No. 14-R/7 of 2008 in case FIR No. 107 of 2006 under Section 302 readwith Section 34 IPC, registered in Police Station Jubbal District Shimla H.P. The 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 21:15:23 :::HCHP 2acquittal of respondents has been assailed by State of H.P. in present appeal.
2. We have heard learned counsel for parties and .
have gone through the record.
3. Deceased Sanju son of PW-1 Sandhira Sharma was running business of tent house. On 12.12.2006 he was of returning from village Raika to his village Hatkoti with his tents in pickup vehicle driven by PW-12 Nand Lal. PW-11 rt Papu Ram and Lalit Kumar were also with them. Near Palothi Dhar, their vehicle scratched car of respondents coming from opposite side. PW-12 Nand Lal did not stop his vehicle whereupon respondents came back and after chasing pickup vehicle, stopped their car in front of pickup vehicle.
Respondents pulled PW-12 Nand Lal out of pickup vehicle and started beating him. PW-11 Papu Ram and Lalit Kumar ran away from spot, approached PW-1 Sandhira Sharma at Hatkoti and narrated the incident. PW-12 Nand Lal was taken by respondents to Police Station Jubbal. A case under Motor Vehicle Act was registered against PW-12 Nand Lal and he was arrested and was sent for medical examination.
::: Downloaded on - 15/04/2017 21:15:23 :::HCHP 34. Deceased Sanju neither reached Hatkoti nor was found with PW-12 Nand Lal. PW-1 Sandhira Sharma tried to locate her deceased son Sanju by making telephonic calls to .
her relations as well as Police Station Jubbal. On finding no clue or link about her son on 13.12.2006 at about 9.30 AM.
she lodged missing report Ex. PW-14/B in Police Station of Jubbal PW-12 Nand Lal was released on 13.12.2006 on furnishing surety by PW-1 Sandhira Sharma.
5. rt During intervening night between 12th and 13th December, 2006 respondents had approached PW-2 Keshav Ram for searching one missing person with the help of Mashal. PW-2 Keshav Ram also unsuccessfully tried to search that person in bushes. Respondents went towards Jubbal and PW-2 Keshav Ram returned to his house.
6. After registering missing report police also searched deceased Sanju. PW-1 Sandhira Sharma, PW-11 Papu Ram and PW-12 Nand Lal and Lalit Kumar were also accompanying the police. PW-1 Sandhira Sharma noticed shoe of deceased Sanju and after spotting shoes they all went down the cliff and found dead body of Sanju lying in the ::: Downloaded on - 15/04/2017 21:15:23 :::HCHP 4 water with injuries on various parts of his body. Dead body was sent for postmortem.
7. On 14.12.2006 PW-1 Sandhira Sharma made .
statement Ex. PA under Section 154 Cr.P.C. suspecting that deceased Sanju was thrown from cliff by respondents after killing him. On the basis of her statement, FIR Ex. PW-9/A of was registered in Police Station Jubal and respondents were arrested and after completion of investigation challan was rt put in the Court under Section 302 readwith Section 34 IPC against respondents.
8. Including respondents there were six persons on the spot and PW-11 Papu Ram and Lalit Kumar had left place immediately after PW-12 Nand Lal was pulled out from vehicle by respondents. As per prosecution story deceased Sanju tried to intervene to save PW-12 Nand Lal but he was pushed below the road by respondents and thereafter took PW-12 Nand Lal to Police Station Jubbal. Therefore, besides respondents there was only PW-12 Nand Lal who was present on the spot to tell about deceased Sanju. PW-12 Nand Lal deposed that when he was being beaten by respondents then Sanju, Lalit Kumar and PW-11 Papu Ram came out of vehicle ::: Downloaded on - 15/04/2017 21:15:23 :::HCHP 5 and thereafter respondents forced him to drive the pickup to the Police Station Jubbal. He was declared hostile on the request of learned public prosecutor and was subjected to .
cross examination. During cross examination he denied suggestions of prosecution that Sanju had tried to save him from clutches of accused and respondents had caught hold of of Sanju and started beating him in presence of this witness.
He also denied that respondent Pawan Kumar had thrown rt deceased Sanju from cliff after taking him towards cliff. He resiled from his earlier statement recorded under Section 161 Cr.P.C. and denied to have made such statement to the police. In cross examination by defence counsel this witness stated that they stayed on the spot for five minutes after stopping his vehicle by respondents and respondents took him to Police Station Jubbal and respondents did not beat Sanju in his presence. He stated that they were not knowing that Sanju had fallen down on 13.12.2006 and they searched him for about an hour. There is no direct evidence on record to link respondents with killing of deceased Sanju. PW-2 Keshav Ram has been examined to prove that respondents were knowing that deceased had fallen from cliff or had been ::: Downloaded on - 15/04/2017 21:15:23 :::HCHP 6 thrown by them below the road. This witness deposed that respondents approached him and he provided a Mashal and accompanied them for searching one persons fallen below .
the road in bushes. As per respondents, someone informed in Police Station Jubbal that out of three persons running towards Hatkoti, one person had fallen from the cliff and of thereupon police official told them that there was shortage of staff and asked to search person fallen from cliff and for this rt reason they took help of PW-2 Keshav Ram for searching said person.
9. Therefore, the statement of PW-2 Keshav Ram is not a conclusive proof to infer that respondents had thrown deceased from cliff and therefore they were searching for him during night.
10. PW-11 Papu Ram deposed that respondents tried to catch them and because of their fear he and Lalit Kumar ran away from spot to house of Sanju and at that time deceased Sanju was there in the vehicle. He stated that they narrated the incident to mother of Sanju after reaching his house and mother of Sanju i.e. PW-1 Sandhira Sharma rang up to Police Station Jubbal and she was replied that persons ::: Downloaded on - 15/04/2017 21:15:23 :::HCHP 7 had been sent for medical examination. But later on police official conveyed her that only Nand Lal was there in police Station. He also admitted that on 13.12.2006 he, Nand Lal, .
Lalit Kumar were interrogated by Police and their statements were recorded by Police.
11. PW-1 Sandhira Sharma visited Police Station of Jubbal on 13.12.2006 and bailed out PW-12 Nand Lal but at that time PW-12 Nand Lal did not state anything with regard rt to pushing deceased by respondents from cliff on the day of incident. Respondents took PW-12 Nand Lal from spot to the police and lodged report against him resulting into his arrest on 12.12.2006. he was not having any sympathy for respondents especially on that day. Even if, it is considered that on 12.12.2006 he was feeling himself guilty and was under pressure of respondent as well as of police because of his conduct and situation then also after bailing out on furnishing surety by PW-1 mother of Sanju, there was no impediment to him for not disclosing to her about killing of deceased Sanju by pushing from cliff by respondent Pawan Kumar. PW-12 Nand Lal was alongwith PW-1 Sandhira Sharma and PW-11 Papu Ram on 13.12.2006 and ::: Downloaded on - 15/04/2017 21:15:23 :::HCHP 8 14.12.2006 but till 14.12.2006 no such statement/disclosure was ever made by PW-12 Nand Lal.
12. Statement of PW-1 Sandhira Sharma under Section .
154 Cr.P.C. was recorded on 14.12.2006 on the basis of which FIR against respondents was registered. PW-7 Sanjeev Kumar admitted that statement of Sandhira Sharma of was recorded on the spot in presence of Deputy Superintendent of Police, Sub Divisional Magistrate and 50- rt 100 other persons and respondents, Papu Ram, Nand Lal and Lalit Kumar were also present on the spot. PW-11 Papu Ram also admitted that on 14.12.2006 he was in the house of Sanju deceased and several persons had assembled in Hatkoti Rest house where Sub Divisional Magistrate and Deputy Superintendent of Police were called there. Deputy Superintendent of Police called respondent Pawan Kumar there and his statement was also recorded in the presence of Sub Divisional Magistrate. PW-12 Nand Lal also admitted that on 14.12.2006 he was present in Hatkoti Rest House and his statement was recorded by the Sub Divisional Magistrate in the Rest house in presence of 100 persons including Sub Divisional Magistrate and Deputy ::: Downloaded on - 15/04/2017 21:15:23 :::HCHP 9 Superintendent of Police. He admitted that people present in Rest House were angry but he showed ignorance about pressurizing by those persons for registration of case against .
respondents. PW-14 Investigating Officer also admitted that statement of Sandhira Sharma was recorded in Hatkoti Rest House in presence of villagers, Deputy Superintendent of of Police and Sub Divisional Magistrate. He admitted presence of both respondents in the rest house. He stated that rt residents of area were agitating and were demanding registration of case against respondents. He admitted that on that day PW-11 Papu Ram and PW-12 Nand Lal and Lalit Kumar did not say anything against the respondents. The circumstances in which statement of PW-1 was recorded under Section 154 Cr.P.C. also create doubt about fair investigation.
13. Even if Ex. PA statement of PW-1 Sandhira Sharma is considered to be correct, even then in that statement she only suspected that her son was thrown from cliff by respondents after killing him. PW-11 Papu Ram and PW-12 Nand Lal were present in the rest house who were staying in the house of PW-1 Sandhira Sharma. In case deceased Sanju ::: Downloaded on - 15/04/2017 21:15:23 :::HCHP 10 was thrown from cliff by respondents in presence of PW-12 Nand Lal, then he must have told this fact of PW-1 Sandhira Sharma. But, in her statement she did not state specifically .
that deceased Sanju tried to save Nand Lal upon which deceased Sanju was also beaten by respondents and pushed from cliff as was claimed by prosecution on the basis of of statement of PW-12 Nand Lal recorded under Section 161 Cr.P.C.
14. PW-12 rtNand Lal resiled from his statement recorded by police under Section 161 Cr.P.C. and did not state in the Court that deceased Sanju was pushed or thrown by respondents from cliff in his presence. His version deposed in Court appeared to be correct as had respondents have pushed deceased Sanju from cliff in his presence while deceased was trying to save him, he would have definitely disclosed this fact PW-1 Sandhira Sharma who had bailed out him on 13.12.2006 or to PW-11 Papu who was resident of his area.
15. PW-1 Sandhira Sharma in her deposition in the Court stated that she made telephonic call to police at 11.00 PM to talk with her son but police people replied that her son ::: Downloaded on - 15/04/2017 21:15:23 :::HCHP 11 was not there in Police Station but driver etc were there, who were telling that three persons ran away from the spot.
Therefore, it can be inferred that from the very beginning .
PW-12 Nand Lal was saying that three persons i.e. Papu, Lalit Kumar and Sanju fled from the spot.
16. Respondents have also examined DW-1 as defence of witness but his statement is not necessary to be discussed as there is no sufficient material on record to prove guilt of rt respondent. The only eye-witness PW-12 Nand Lal who was companion of deceased at the time of incident had not supported prosecution case. Even if entire evidence is considered to be correct then also the material on record leads to suspicion only. Suspicion however strong can not take place of proof. Therefore, it cannot be said with certainty beyond all reasonable doubts that respondents had thrown deceased Sanju from the cliff to kill or after killing him.
17. PW-11 Papu Ram and PW-12 Nand Lal and Lalit Kumar in their statements under Section 161 Cr. P.C. did not state anything against respondents at first instance but they stated so in supplementary statements recorded by PW-
::: Downloaded on - 15/04/2017 21:15:23 :::HCHP 1213 Ram Rattan. In his cross examination PW-13 stated that these witnesses were eye witness to the incident and their statements under Section 161 Cr.P.C. were already on record .
at the time of recording their supplementary statements and he admitted that at the time of recording supplementary statements of these witnesses, their earlier statements were of not read by him and these witnesses did not said at all that their previous statement were incorrect. There is possibility rt of registration of case succumbing to public pressure.
18. Respondents have been acquitted by the trial Court. From perusal and scrutiny of evidence, it cannot be said that the learned trial court has not appreciated the evidence correctly and completely and acquittal of accused has resulted into travesty of justice or has caused miscarriage of justice. After considering arguments of respective counsel for the parties and minutely examining the testimonies of the witnesses and other documentary evidence placed on record, we are of the considered view that prosecution has failed to prove the guilt of respondents-
accused beyond reasonable doubt and thus, no case for interference is made out.
::: Downloaded on - 15/04/2017 21:15:23 :::HCHP 1319. The present appeal, devoid of any merit, is dismissed, as also pending applications, if any. Bail bonds, if any, furnished by the accused are discharged. Records of .
the Court below be immediately sent back.
(Rajiv Sharma)
Judge
of
rt (Vivek Singh Thakur)
Judge
19th September, 2016
(Subh)
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