Himachal Pradesh High Court
_____________________________________________________ vs State Of Himachal Pradesh on 5 January, 2018
Bench: Tarlok Singh Chauhan, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Criminal Appeal No. 55 of 2017 Reserved on : 14.12.2017 Date of judgment : 05.01.2018 .
_____________________________________________________ Vikas Kumar @ Vikky ... Appellant Versus State of Himachal Pradesh ... Respondent _____________________________________________________ Coram:
The Hon'ble Mr. Justice Tarlok Singh Chauhan,Judge The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge. 1 Whether approved for reporting? No. ____________________________________________________ For the Appellant: Mr. Anoop Chitkara, Advocate.
For the respondent: Mr. J.S. Guleria, Assistant Advocate General.
Chander Bhusan Barowalia, Judge The present appeal is preferred by the accused Vikas Kumar (hereinafter referred to as "the appellant") under Section 374(II) of the Code of Criminal Procedure, laying challenge to judgment, dated 01.12.2016, passed by the learned Additional Sessions Judge(II), Kangra at Dharamshala, H.P., in Sessions Trial No.14-G/III/2014, 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 06/01/2018 23:02:49 :::HCHP 2whereby the accused was convicted under Section 302 of the Indian Penal Code and sentenced as under:
Conviction Sentence of Amount of fine Sentence in under substantive imposed default of .
Section imprisonment payment of
fine
302 I.P.C. Rigorous Rs.50,000 Rigorous
imprisonment imprisonment
for life. for a period of
one year
2. The factual matrix, as per the prosecution story, may tersely be summarized as under:
On 13.8.2014, Puni Lal (since deceased) was returning home having a bag in his hand and the accused Vikas Kumar, alias Vikky, was following said Punni Lal. He gave 3-4 repeated sickle blows on deceased head, due to which, blood started oozing and he fell on the ground. Accused, thereafter, fled away from the scene. Rajnish Kumar (nephew of the deceased) has witnessed the incident, as he was walking behind them while returning home after fetching vegetables from the market. Rajneesh Kumar on seeing the attack got scared and ran towards his house and disclosed about it to his mother, namely Anita Kumari who raised alarm and ran towards the scene of crime. Other people also gathered ::: Downloaded on - 06/01/2018 23:02:49 :::HCHP 3 there, they all shifted Puni Lal to a private clinic of Dr. Aman, who after examining, declared him dead. In the meantime, police was informed, pursuant to which Sub Inspector .
Manohar Lal came there and recorded the statement of Rajneesh Kumar and on the basis of this statement, case FIR No.68/2014, came to be registered against the accused for the offence punishable under Section 302 of the Indian Penal Code.
3. The challan was presented by the prosecution and the accused was charged for an offence under Section 302 of the Indian Penal Code. However, he pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution examined as many as twenty six witnesses.
5. In his statement under Section 313 Cr.P.C., the accused claimed innocence and also took a defence that he is involved in a false case due to enmity with Satya Devi, one of the witnesses. In defence, the accused has produced copy of the F.I.R. Ext.D1 and a copy of application under Section 39, Rules 1 & 2 CPC, made in a suit in between father of the accused and Satya Devi and others.::: Downloaded on - 06/01/2018 23:02:49 :::HCHP 4
6. Heard. Mr. Anoop Chitkara, learned counsel for the accused/appellant has argued that there is no motive to .
commit the crime on the part of the accused and the prosecution has failed to take into consideration the fact that the accused was falsely implicated and there is every possibility that the deceased who was drunk as per the medical report, has died due to fall on a hard surface and in these circumstances, the petitioner is required to be acquitted.
rOn the other hand, Mr. J.S. Guleria, learned Assistant Advocate General for the State has argued that the prosecution has proved the guilt of the accused beyond shadow of reasonable doubt and the injuries are connected with the weapon of offence and the incidence was witnessed by the nephew of the deceased, who was just behind the accused and the statement of eye witness and other evidence on record prove the guilt of the accused beyond shadow of reasonable doubt. In rebuttal, Mr. Anoop Chitkara, learned counsel for the accused has argued that the benefit of every reasonable doubt is required to be given to the applicant/appellant.
::: Downloaded on - 06/01/2018 23:02:49 :::HCHP 57. To appreciate the arguments of the learned counsel for the parties, we have gone through the record of the case in .
detail.
8. PW-1, Rajneesh Kumar, who was the eye witness of the incidence, has stated that on 13.8.2014, around 7.00 P.M., when he was returning home after fetching vegetables from the shop of one Sonu, he saw his uncle Puni Lal walking ahead of him and was having bag in his hand.
Accused, who he identified in the Court, was following Puni Lal, whereas he was behind the accused. He has deposed that the accused was armed with sickle (Darati) and he attacked his uncle from the backside and gave 3-4 blows on the head of his uncle (deceased). Resultantly blood started oozing. Thereafter, he ran away towards his house and disclosed about the incident to his mother Anita Kumari, upon which, his mother raised alarm and thereafter villagers came to the spot. He has further stated that the deceased was taken to a nearby private Clinic of Dr. Aman, but till then Puni Lal died. He has also deposed that he gave his statement, Ex.PW1/A to the police. He also identified the ::: Downloaded on - 06/01/2018 23:02:49 :::HCHP 6 weapon of offence, i.e. sickle Ex.P2 to the same with which the accused assaulted his uncle Puni Lal, it was seized by the .
police in his presence vide memo. Ex.PW1/B. In his cross-examination, he has stated that his statement was recorded by the police in the Clinic of Dr. Aman. He has stated that there was shop of Sonu on the National Highway, adjoining the Clinic of Dr. Aman. He has admitted that there are 30-40 houses in between his house and the shop of Sonu.
He deposed that he started from his house around 6.30 P.M. for the shop of Sonu. He denied the suggestion that another boy was also accompanying him. He stated that shop of Sonu is at the distance of half kilometer from his house. He further stated that it took 15 minutes for him to reach the shop of Sonu. He has also stated that on his return at around 6.50 P.M. no one met him on his way. He has also deposed that it takes 25-30 minutes for him to reach the scene of crime from the shop of Sonu. He also admitted that Satya Devi is his aunt and Pradhan and she is having some litigation with the accused. He denied the suggestion that Anita Kumari is daughter-in-law of Satya Devi, Pradhan of the ::: Downloaded on - 06/01/2018 23:02:49 :::HCHP 7 Gram Panchayat and Harish is son of Satya Devi. He has admitted that at the time of occurrence, Harish and Satya Devi etc. were present in their houses and that the path on .
which they were coming, passes through the courtyard of Tilak Raj and Satya Devi. He denied the suggestion that he had made statement, Ex.PW1/A at the instance of Satya Devi and family members of the deceased. He admitted that on 13.08.2014, there was heavy rain and storm and also that the houses of Satya Devi and Tilak Raj were not visible from the base of hillock. He denied the suggestion that on the day of incident, the deceased was heavily drunk by volunteering that he had a bit of it. He denied the suggestion that deceased was habitual drunkard. Volunteering stated that he used to drink occasionally. He was 10-15 feet behind the accused and the deceased was at the distance of three feet from the deceased.
He also denied the suggestions contrary to his version given in his examination-in-chief. In the end, he has denied that he had deposed falsely.
9. PW-2, Vijay Kumar deposed that on 13.8.2014, at around 7.00 P.M., when his father was returning home, accused came from back-side and assaulted on the head of ::: Downloaded on - 06/01/2018 23:02:49 :::HCHP 8 his father with a sickle (Darati) continuously for 3-4 times, resultantly, he started bleeding and fell down unconscious.
He has further stated that Rajneesh Kumar was also .
following them, who after seeing the incident, rushed to his house and disclosed about it to his mother. Thereafter, he, alongwith his mother, mother of Rajneesh Kumar and other villagers went to the spot and found his father in pool of blood. He has further stated that he, alongwith Tarsem and Sethu took his father to the Clinic of Dr. Aman, who declared his father dead. He has stated that in his presence bed sheet, Ex.P5 was seized by the police vide memo Ex.PW-2/A. In his cross-examination, he has admitted that Rajneesh (PW1) is his first cousin and their families resides together in the same house and when Rajneesh went to fetch vegetables, he was present in his house. He had denied that the house of the accused is adjoining to his house by stating that it is 15 feet away. He further admitted that the houses of Tilak Raj and Harish, who were the sons of Satya Devi, are adjoining to hillock and his house is at a distance of 15 feet from the hillock.
He admitted that the passage towards hillock is used by the ::: Downloaded on - 06/01/2018 23:02:49 :::HCHP 9 villagers and that the passage was built from the stones. He denied the suggestion that it become slippery in the rainy seasons. He admitted that during rainy season, the house .
situated on the other side of hillock are not visible from its base and that he has not witnessed the actual occurrence and was not present on the spot at the time of incident. He denied the suggestion that his father died as he had fallen down on the stones, because he was drunk.
10. PW-3, Tarsem Lal deposed that during evening time Rajneesh Kumar disclosed to him that the accused had assaulted Punni Lal with a sickle, on which he went to the spot alongwith others and saw Puni Lal on the ground in pool of blood and was unconscious. He helped in taking Puni Lal to the Clinic of Dr. Aman, where he was declared dead. He has admitted that in his presence, police took parcels, letters etc lying at the scene of crime, vide memo Ex.PW-3/A. In cross-examination, he admitted that Puni Lal was his uncle and denied the suggestion that shout of person from the hillock could be heard in the houses of Harish and Tilak Raj. He also admitted that he was not present on the spot when deceased being assaulted by the ::: Downloaded on - 06/01/2018 23:02:49 :::HCHP 10 accused. He denied the suggestion that his uncle died as he has fallen down on the stones because he was drunk.
11. PW4, Rashmo Devi, is the wife of deceased. She .
has deposed that on 13.8.2014 at about 7.00 P.M. when she was present in her house then Rajneesh Kumar and his mother Anita came to her and disclosed that the accused assaulted her husband with a sickle. She has further deposed that she rushed to the spot alongwith other villagers and found her husband in pool of blood, thereafter, her husband was shifted to Clinic where the deceased was declared dead. She has deposed that prior to this incident, about 20-25 days ago prior to this incident, the accused and his brother Sethu hit her husband with a bike and to this effect a complaint was made to the Pradhan of Gram Panchayat for which accused and his brother Sethu tendered apology to her husband in her presence and accused also threatened her husband with dire consequences and to do away with his life. In her cross-examination, she was confronted with her previous statement where this fact that accused hit her husband with motorbike was not mentioned. She admitted that they ::: Downloaded on - 06/01/2018 23:02:49 :::HCHP 11 were having good relations with the accused prior to this incident. She admitted that she had not witnessed the incident. She denied the suggestion that her husband was .
drunk, as such, he had fallen down and sustained injuries on his head.
12. PW-5, Anita Devi deposed that on 13.8.2014, at about 7:00 PM, she saw Puni Lal (deceased) lying injured at the backside of her house. He was having injuries on his head. Deceased was shifted to private Clinic by Tarsem, Sethu and Vijay. She heard that the accused assaulted the deceased with the sickle. In cross-examination, she admitted that Satya Devi, is her mother-in-law and the path passes through the courtyard of her house, which becomes slippery during rainy season. She has denied the suggestion that she had litigation with the family of the accused. She feigned ignorance as to the fact that her mother-in-law is having litigation with the family of the accused. On 13.8.2014, at about 7:00 PM, she was inside her house and she had not seen anyone running from the scene nor she heard any cries. She has admitted that she had not seen the accused assaulting Puni Lal (deceased).
::: Downloaded on - 06/01/2018 23:02:49 :::HCHP 12She has also denied that she is deposing falsely.
13. PW-6 Satya Devi, deposed that on 13.8.2014, in the evening time, she was sitting in her courtyard. She .
heard the cry from the downhill side of her house. She rushed to the source of voice where she saw Anita,Rasmo,Rajneesh and Tarsem. She also saw that deceased Puni Lal was lying in a pool of blood and blood was oozing out from his head and he was unconscious.
Rajneesh was weeping loudly and was saying that accused Vikas had given sickle blow on the head of his uncle Punni Lal. She got nervous by seeing the blood as such she did not accompany Punni Lal, who was taken away by his relative Vijay and Tarsem for medical attendance. She has deposed that she came to know through telephone that Puni Lal had died. After a while, police officials visited the spot in her presence and they lifted soil smeared with blood from place where Punni Lal was lying and seized it vide seizure memo, Ex.PW-6/A. She had deposed that the bag of the deceased as well as the documents of the postal department kept therein were seized by the police vide memo, Ex.PW-3/A and they were handed over to her. She ::: Downloaded on - 06/01/2018 23:02:49 :::HCHP 13 has further deposed that few days prior to the present incident, the brother of the accused Sethu had struck the deceased with his motorcycle and a quarrel took place .
between the parties. In cross-examination, she has admitted that the mother of accused Nimmo Devi also remained Ward Panch of Ward No.2, Gram Panchayat Bhangwar. She was also confronted with her previous statement Mark-D1 as to the fact that she heard cries from the down hill side of her house and that the nephew of the deceased Rajneesh was crying and was saying that it was the accused who has killed his uncle with the sickle. She denied that the place from where the blood stained soil was lifted by the officials was intruded by many people before lifting of the same. She admitted that the night of the incident witnessed heavy rain fall by volunteering that the rain occurred only after the lifting of the soil. She also denied that her son Tilak Raj assaulted the father of the accused, however, she admitted that a case was registered against her son with respect to assault and criminal trespass committed against the father of the accused. She also admitted that the father of the accused had filed a civil ::: Downloaded on - 06/01/2018 23:02:49 :::HCHP 14 suit against her in a Court at Kangra. Volunteered stated that the same was dismissed by the Court. She has further stated that the father of the accused moved the Hon'ble .
High Court of HP against her with respect to encroachment over Government land. However, it was a false case. She also admitted that her relation with family of the deceased and the accused were cordial. She denied that since her relation with the family of the deceased were cordial and strained with that of the accused, hence, she in connivance with the family of the deceased made a false case against the accused.
14. PW-7, Jyotshi Kumar deposed that on receiving the unfortunate news of the demise of his brother-in-law (Puni Lal), he rushed to Aman Clinic at Bhangwar and found the deceased lying on a cot with a bed sheet over it.
The police officials seized the bed sheet Ex.P5, pillow cover, Ex.P-9 and a scarf, Ex.P-10 soiled with blood, in his presence vide memo, Ex.PW-2/B. In cross-examination, he denied that the memo, Ex.PW-2/A was not prepared in his presence.
::: Downloaded on - 06/01/2018 23:02:49 :::HCHP 1515. PW-8, Anil Kumar, deposed that he photographed Ex. PW-8/A1 to Ex.PW-8/A6 as well as video-graphed of the dead body and scene of crime (Ex.PW-
.
8/B-1 to Ex.PW-8/B4). He also prepared CD, Ex.PW-8/C in this behalf.
16. PW-9, Aman Deep, who was the owner of a private Clinic, where the deceased was taken after the incident, has deposed that deceased was brought to his clinic by the villagers in the evening. He deposed that there were cut mark injuries on the head of the deceased wherefrom the blood was oozing out. On medical examination, Punni Lal was found dead. In cross-
examination, he has stated that he had not noticed any injury except on the head of the deceased.
17. PW-10, Parveen Kumar deposed that the accused made a disclosure statement that weapon of offence was concealed by him in the bushes at the place Bhangwar, Tehsil Dehra District Kangra of which he was having exclusive knowledge and he could get it recovered.
The accused also disclosed that he is aware of the place where the incident had taken place and he could locate the ::: Downloaded on - 06/01/2018 23:02:49 :::HCHP 16 same. Pursuant to his statement, accused led him as well as the police party towards the pedestrian way bifurcated from the main road and after climbing uphill the accused .
led them to the right side and pulled out one sickle from the bushes. Police also measured the sickle (Drati) and prepared its sketch (Ex.P-3) and thereafter seized it vide memo, Ex.PW-1/B. Raj Kumar and other witnesses also witnessed this recovery. The nephew of the deceased identified the sickle, Ex.P-2. The police prepared maps with respect to these proceedings and during cross-examination, he admitted that he visited the police station in the capacity of Pradhan on 18.8.2014 and that Haripur Bazar is quite a big bazar where business men and other influential persons resides. He admitted that sickle like Ex.P-2 is ordinarily used in household and husbandry. He also admitted that being a Pradhan, he used to get associated as a witness in police cases. He also denied that the statement of the accused was extracted by using third degree methods by the police. He denied the suggestion contrary to his version given in his examination-in-chief.
::: Downloaded on - 06/01/2018 23:02:49 :::HCHP 1718. PW-11, Sunil Kumar, who was a salesman of a liquor vend deposed that about one year ago, accused came .
to his liquor vend and purchased half bottle of liquor and that he had not seen anything else. In cross-examination, he denied the suggestion that the accused had consumed the said bottle of liquor in a shop, in front of his liquor vend. He also denied that Punni Lal (deceased) came there on that day. He further denied the suggestion that the accused had an altercation with the deceased, but this witness was not cross-examined on behalf of the accused.
19. PW-12, Anand Kishore, videographed the disclosure statement of the accused. He deposed that thereafter, the accused led the police party to a place Bhangwar from where he took out a Drati (Ex.P2) kept concealed behind the bushes. He also prepared DVD in triplicate and handed over the same to the police of Police Station, Hairpur. Photograps (Ex.PW12/A-1 to Ex.PW12/ A-5) were taken by him. In his cross-examination, he deposed that he had been paid for his services by the police.
::: Downloaded on - 06/01/2018 23:02:49 :::HCHP 1820. PW13, Madan Singh, who was revenue official, handed over the Tatima, Ex.PW13/A and Jamabandi, Ex.PW13/B of the place of incident where the dead body of .
the deceased was recovered.
21. PW-14, Dr. Gurmeet Singh, who alongwith Anita Mahajan, conducted the post-mortem examination of the deceased, issued report Ex.PW-14/A-1 and after receipt of RFSL report, they opined that the cause of death was shock due to heavy injury caused by sharp weapon. He further deposed that the ante-mortem injuries mentioned in Ex.PW14/A-1 were possible with the sickle (Ex.P2). In his cross-examination, he denied the suggestion that the ante-
mortem injuries mentioned in Ex.PW14/A-1, are possible due to fall on sharp stony surface. He denied the suggestion that the injuries were not ante-mortem in nature, but post-mortem.
22. PW-15, Dr. Sanjay Bajaj had also medically examined the accused and handed over his clothes and blood sample to the police.
23. PW-16, Dr. C.L. Sharma, who was the Forensic Expert, deposed that Ethyl alcohol in the quantity of ::: Downloaded on - 06/01/2018 23:02:49 :::HCHP 19 71.27 mg% was detected in the Viscera and the blood of the deceased and in this regard he issued his report, Ex.PA. In his cross-examination, he denied that the percentage of .
alcohol mentioned in Ex.PA is more than the normal consumption, volunteering that the capacity of consumption depends on person to person according to his physical status.
24. Dr. Ajay Sehgal, who was another forensic expert, has been examined as PW17. He deposed that blood group 'A' was detected in the blood sample, pants Ex.P13, shirt Ex.P14 of the deceased. Further deposed that this blood group was also detected on the bed sheet, Ex.P5, pillow cover, Ex.P9, blood stained soil, T-shirt, Ex.P11 of accused Vikas Kumar and weapon of offence i.e. sickle (Darati) in this regard and he issued his report Ex.PW-17/A. Blood group 'B' was detected in the blood sample of the accused and in this regard he issued report Ex.PW-17/B. In his cross-examination, he admitted that the blood group 'A' and 'B' are common and it cannot be said with certainty that the blood group A found on the T-shirt of the accused is of the deceased. He also admitted ::: Downloaded on - 06/01/2018 23:02:49 :::HCHP 20 that for that purpose there is a perfect science of DNA profiling.
25. PW-18, HHC Ramesh Chand had taken the .
statement, Ex.PW1/A and handed over the same to MHC, Police Station, Haripur.
26. PW-19, HHC Diley Ram, on the directions of the Investigating Officer, took the dead body of Puni Lal to CHC, Dehra. He deposed that the dead body was kept in the mortuary on 13.8.2014 and on the next day i.e. 14.8.2014, the post-mortem of the dead body was conducted by the Medical Officers, thereafter, they handed over the postmortem report alongwith viscera and other articles to him, which he delivered to MHC, Police Station, Haripur.
27. PW-20, HHC Dilbag Singh, deposed that on 13.8.2014, he received an information from anonymous caller that Puni Lal was murdered by one Vicky and he recorded the information in daily diary and, thereafter, forwarded this information to ASI, Karam Singh and also to the Station House Officer, Police Station, Haripur. In his cross-examination, he admitted that there was a complete ::: Downloaded on - 06/01/2018 23:02:49 :::HCHP 21 information and not a cryptic one as to the alleged commission of cognizable offence. He also admitted that he had not registered FIR on the basis of such information by .
explaining that there is no provision in the Police Posts to record the FIR and they are recorded at Police Station(s) concerned.
28. PW-21, HC, Pushpinder Singh deposed that on 16.8.2014, three DVDs, of which one was Master DVD and photographs (Ex.PW8/B-1 to Ex.PW8/B-4) were delivered to him by Anil Kumar, photographer. He handed over these photographs to Investigating Officer Manohar, who after sealing them, seized vide memo Ex.PW8/C.
29. PW-22, HHC, Raj Kumar deposed that he had taken the sealed parcels containing Viscera etc. of the deceased and weapon of offence to RFSL, Dharamshala.
PW-23, HC Parvesh Kumar, who was posted as MHC at the relevant time and registered the FIR(Ex.PW-23/A) on the basis of statement (Ex.PW-1/A). He has also deposed that the entire case property was deposited in the store vide entries Ex.PW-23/B to Ex.PW-23/E and Ex.PW-23/G and thereafter, he sent the case property to RFSL, Dharamshala ::: Downloaded on - 06/01/2018 23:02:49 :::HCHP 22 through HHC, Raj Kumar vide RC, Ex.PW-23/F and Ex.PW-23/H.
30. PW-24, HHC, Vijay Krishan registered general .
diaries and entered the same in the official computers and in this regard he issued certificates, Ex.PW-24/D and Ex.PW-24/E in terms of Section 68-B of Indian Evidence Act.
31. PW-25, ASI, Surender Pal, deposed that on 18.8.2014, the accused while being interrogated by the Investigating Officer made a disclosure statement that sickle(Drati) with which he had struck Puni Lal (deceased) has been hidden by him the bushes near his fields and that he could get the same recovered. Accused also disclosed that he could identify the place where he had struck the deceased with sickle and had fallen him down. Statement, Ex.PW10/A) was recorded by the Investigating Officer on which, he, Parveen Kumar and accused appended their signatures. Thereafter, accused led them to place Bhangwar, where one Raj Kumar was also associated in the investigations. Accused had taken one sickle hidden in the bushes and handed over the same to the police. The sickle ::: Downloaded on - 06/01/2018 23:02:49 :::HCHP 23 was also identified by Rajneesh. Further, that the Investigating Officer measured the sickle and prepared its sketch, Ex.P3 and thereafter, it was sealed and seized vide .
memo, Ex.PW1/B. He also deposed that he got medically examined the accused at PHC, Haripur and obtained sealed parcel containing clothes of accused. In cross-examination, he admitted that the fields, from where the sickle (Darati) was recovered, was maize crop at that time, hence, the movement in the field was restricted. He denied that disclosure statement was forcibly extracted from the accused by using third degree interrogation methods. He denied that Parveen Kumar, Pradhan is a stock witness.
He also denied the suggestions contrary to his version given in his examination-in-chief.
32. PW-26, SI Manohar Lal, who was the Investigating Officer, has deposed that on 13.8.2014, at 7.35 PM, he received telephonic information through MC, Police Post Ranital that a person named Vikas alias Vikky had struck Puni Lal with sickle (Darati) leading to his death. Pursuant to this, he, alongwith other police officials, proceeded to the spot. When they reached the shop of Dr. ::: Downloaded on - 06/01/2018 23:02:49 :::HCHP 24 Aman Kaushal, they saw many persons gathered there. He recorded the statement of Rajneesh Kumar, Ex.PW1/A under Section 154 Cr.P.C. and sent the same to the Police .
Station, Haripur, through HC, Ramesh Chand. The statement was also videographed through photographer Anil Kumar. The said photographer photographed the dead body of the deceased lying on a bed. He has further deposed that the inquest proceedings were conducted by him vide memos, Ex.PW26/F to Ex.PW26/G and also sent the dead body to Civil Hospital, Dehra for postmortem examination. He seized the blood stained bed-sheet (Ex.P5), pillow cover (Ex.P9) and blood stained dupatta (Ex.P10) vide seizure memo Ex.PW2/A and prepared the spot map, Ex.PW26/B of the place where the dead body was lying.
Thereafter, he proceeded to the scene of crime alongwith Rajneesh Kumar, photographer and other persons. On identification of Ranjees Kumar, he prepared the spot map, Ex.PW26/C of the scene of occurrence. He also got the same photographed and collected blood stained soil, Ex.P6, and control sample of soil, Ex.P7 and seized them vide memo, Ex.PW6/A and the bag of the deceased containing ::: Downloaded on - 06/01/2018 23:02:49 :::HCHP 25 parcels, letters etc. lying on the spot vide memo Ex.PW3/A and handed over the same to Satya Devi, Pradhan on sapurdari with direction to restore them to the Postal .
Department in which the deceased was working.
Statement of Rashmo Devi was recorded the statements of Rashmo Devi, Rajneesh Kumar, Vijay Kumar, Tarsem Lal, Sangeeta Devi, Anita Devi, Satya Devi, Lal Chand, Jyotshi Kumar, Anil Kumar and HHC Ramesh Chand were recorded under Section 161 Cr.P.C. He searched for the accused, but he could not be found. He deposited the case property with MHC in the Police Station. He deposed that on the next day of occurrence, the accused could not be arrested, as he had absconded. He deposed that the accused was brought to the Police Station by his brother, namely Ravinder. He interrogated him and on finding sufficient evidence of his involvement in this case, he formally arrested him vide memo Ex.PW26/J. On 18.8.2014, the accused made a disclosure statement that sickle (Drati) with which he had struck the deceased has been hidden by him in bushes near his fields and that he could get the same recovered. The accused also disclosed ::: Downloaded on - 06/01/2018 23:02:49 :::HCHP 26 that he could identify the place where he had struck the deceased with sickle. He also recorded the statement Ex.PW10/A, pursuant to which, the accused led the police .
party and others to a pedestrian path leading to Village Garh and after climbing uphill, turned towards his fields.
He deposed that thereafter, accused walked on the small path along the fields and thereafter, pulled one sickle (Ext.P2) hidden in the bushes and handed it over to him.
Complainant Rajneesh identified it to be the same with which accused had struck the deceased. He took the measurements of the sickle and prepared its sketch (Ext. P-
3) and seized it vide memo, Ex. PW1/B. He got the entire proceedings video-graphed and also prepared spot map (Ext.PW26/L) of that place. Accused also located the scene of crime. He prepared its spot map, Ext. PW26/M) and also recorded the statement of witness Rajneesh Kumar, ASI Surendar Kumar, Raj Kumar and Parveen Kumar under Section 161 Cr.P.C. He got conducted the demarcation of the scene of the crime through revenue agency and procured Tatima (Ex.PW13/A) and Jamabandi (Ext.PW13/B). On receipt of RFSL report, he sought ::: Downloaded on - 06/01/2018 23:02:49 :::HCHP 27 medical opinion (Ext. PW26/P) regarding possibility of injuries with weapon of offence. On conclusion of investigation, he prepared the police report and presented .
the same before the Ld. J.M.I.C., Dehra. In cross-
examination, he deposed that he reached the spot around 8:10 - 8:12 P.M. and at that time, it was drizzling. He admitted that if a person stands on the bottom of cliff, the house on the upper side as well as the scene of crime is not visible. Though, he volunteered that if a person stands at a distance from cliff at the bottom then they are visible. He also admitted that most of the witnesses in this case are related to the deceased, however, he explained that they were only the natural witnesses present on the spot. He denied the suggestion that the police had adopted various inhuman method and third degree to extract the statement of accused under Section 27 of the Indian Evidence Act. He also admitted that information received by him in the Police Station also revealed the fact that accused had committed murder of the deceased, but he had not recorded FIR on this statement, as in his opinion, this information was incomplete and he had to verify certain facts. He denied all ::: Downloaded on - 06/01/2018 23:02:49 :::HCHP 28 the suggestions contrary to his version given in his examination-in-chief.
33. Thus, it is clear that Rajneesh Kumar (PW1) was .
just 10 feet to 15 feet behind the accused and he has seen the incident and he has clearly deposed that on 13.8.2014 at around 07.00 P.M., when he was returning home after fetching vegetables from the shop of one Sonu, he saw his uncle Puni Lal (since deceased) walking ahead of him and the accused was following him. He was behind the accused, who was armed with a sickle. He has deposed that the accused attacked his uncle from his backside and gave 3-4 blows on his uncle's head due to which blood started oozing. Thereafter, the accused fled from the scene.
Further that he rushed to home and disclosed about the incident to his mother. In cross-examination, he has defined the happenings in a clear manner. His statement is corroborated by the medical evidence on record as well as the photographs Ex.PW8/A-1 to A-6, which clearly depicts that the injuries caused by sickle on the head of the deceased. The evidence of the nephew (PW1) clearly proves the case against the accused. The plea of the defence is not ::: Downloaded on - 06/01/2018 23:02:49 :::HCHP 29 tenable in the eyes of law, as there is no occasion for the deceased family to protect the real culprit and to involve the accused, and otherwise also, Satya Devi and Aunt of .
PW1 and PW1 cannot be said to be interested to involve the accused falsely for the death of his Uncle. The recovery of the weapon of offence at the instance of the accused is material evidence against the accused when as per the Doctor, injuries were possible with the weapon. The corroboration comes from the fact that the weapon of offence was recovered at the instance of the accused. As is evincible, the witnesses, Parveen Kumar (PW-10) and ASI, Surinder Pal (PW-25) have proved Ext.PW-10/A, the disclosure statement of the accused relating to discovery of weapon of offence and of the spot where the deceased was assaulted. The testimony of these witnesses goes to show that the disclosure statement Ex.PW-10A was voluntarily made by the accused.
34. Now coming to the statement of Dr. Gurmeet Singh (PW-14), who had conducted post-mortem examination of Puni Lal (deceased). He has deposed that the cause of death was shock due to head injury caused by ::: Downloaded on - 06/01/2018 23:02:50 :::HCHP 30 sharp weapon. As per the post-mortem report (Ex.PW-
14/A-1) injuries No.1 to 3 on the person of the deceased were in the nature of spindle shape incised wound with .
clean margins on the parietal bone. All the injuries were ante mortem in nature. Dr. Gurmeet Singh opined that these injuries are possible with the sickle (Darati) i.e. weapon of offence. As per forensic report, weapon of offence i.e. Sickle was having traces of blood on it and when it was examined by the Forensic Expert vide its report Ex.PW-17/A, blood group A was detected on it, same blood group was also detected on the T-shirt of the accused. It has been stated that deceased was having blood group A whereas the blood group of the accused was B. It is true fact that the perfect science to connect the blood of the deceased on weapon of offence and T-shirt of the accused is D.N.A. test, which is not done in the present case.
However, it is not a case solely based on this evidence.
35. The First Information Report in this case is recorded at the earliest possible and this also belies the defence version that the accused is falsely implicated.
::: Downloaded on - 06/01/2018 23:02:50 :::HCHP 3136. Now, after analyzing the quality of the statement of PW-1 alongwith other evidence, which has come on record, alongwith the medical evidence, it is impossible to .
believe the defence version that the accused has got injury by fall. The injury itself shows that it is caused by the weapon of offence. Further, the fact that the deceased has taken Alcohol nowhere suggest that the accused has right to cause injury to him. The submissions of the learned counsel for the accused that the accused is falsely implicated is without any force in view of the discussions made hereinabove, as there was no reason for PW-1 to involve the accused leaving behind the real culprit. Further there is no suspicion in the prosecution story and the case is proved beyond all doubts.
37. The net result of the above discussion is that the findings recorded by the learned trial Court are just reasoned and on the basis of record and this Court holds that the prosecution has proved the guilt of the accused beyond shadow of all reasonable doubts. This Court finds that the learned Trial Court has rightly dealt with the defence version and found the same to be not worthy of ::: Downloaded on - 06/01/2018 23:02:50 :::HCHP 32 credence. Thus, the appeal sans merit and deserves dismissal. We, thus, find no merit and substance to interfere with the well reasoned judgment, passed by .
learned trial Court and the appeal filed by the appellant is accordingly dismissed.
38. Pending application(s), if any, also stand disposed of.
r to (Tarlok Singh Chauhan)
Judge
(Chander Bhusan Barowalia)
Judge
05.01.2018
(M.gandhi)
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