Himachal Pradesh High Court
Khem Singh Alias Nitu vs State Of Himachal Pradesh on 17 April, 2015
Bench: Rajiv Sharma, Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. Appeal No. 90 of 2012
.
Reserved on: April 16, 2015.
Decided on: April 17, 2015.
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Khem Singh alias Nitu ......Appellant.
Versus
State of Himachal Pradesh .......Respondent.
________________________________________________________________________
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting? Yes.
For the appellant: None.
For the respondent: Mr. P.M.Negi, Dy. Advocate General.
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Justice Rajiv Sharma, J.
This appeal is instituted against the judgment dated 20.8.2011/25.8.2011, rendered by the learned Sessions Judge, Kullu, H.P. in Sessions Trial No. 29 of 2010, whereby the appellant-accused (hereinafter referred to as the accused), who was charged with and tried for offence punishable under Section 302 IPC, has been convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs.
10,000/-.
2. The case of the prosecution, in a nut shell, is that the statement of Narotam Ram, PW-1 was recorded under Section 154 Cr.P.C.
vide memo Ext. PW-1/A to the effect that there was a Fagli festival on 15.2.2010 in the village. He alongwith his family members, brother-in-
::: Downloaded on - 15/04/2017 18:00:21 :::HCHP 2law and one Hukam Singh of Village Chhardi as well as Khem Singh alias Nitu were taking their meals. The complainant enquired the reason from .
the accused as to why he had come to the house of the complainant. The father of the complainant revealed that accused had come with him.
Thereafter, accused got annoyed and left the room and started abusing the complainant from outside the house and he also pelted stones on the house of the complainant. When the complainant came out of the house, the accused fled away from the spot. On 16.2.2010, there was bhandara in the temple of deity Girmil.
r The complainant could not inquire the
reasons for abusing and throwing the stone from the accused. On
17.2.2010, the maternal uncle of complainant, namely, Aelu Ram came and thereafter the complainant accompanied by Aelu Ram went to the village Bradha to enquire the reasons from the accused for abusing and sat in the courtyard of the house of Mohar Singh (PW-2). They enquired from Mohar Singh as to whether accused would be available at home or not. Mohar Singh revealed that at that time, accused may not be available. The accused was noticed playing cricket with other boys at some distance from the house of Mohar Singh. The maternal uncle of the complainant Aelu Ram asked the reason from the accused as to why he has abused the complainant and his family and pelted stones on their house on 15.2.2010. The accused went towards his house and the complainant and his maternal uncle remained sitting outside the house of Mohar Singh who went inside his house. At about 2:00 PM, accused again came there with an axe and inflicted blow with it on the head of ::: Downloaded on - 15/04/2017 18:00:21 :::HCHP 3 Aelu Ram from behind due to which woolen cap worn by the deceased Aelu Ram was cut and blow was so deep that blood oozed out from the .
head of the deceased. He fell unconscious on the spot. Thereafter, Mohar Singh and other people of the village gathered at the spot and accused fled away from the spot. PW-2 Mohar Singh informed Bhupinder Thakur, PW-4 about the incident. Bhupinder Thakur informed the police on telephone. Aelu Ram was lifted to the courtyard of Mohar Singh PW-2 where he died. On the statement of the complainant, SI Om Chand made endorsement Ext. PW-13/A on statement Ext. PW-1/A and sent the same to the Police Station. FIR Ext. PW-13/J was recorded on the basis of the rukka. The I.O. visited the spot. He took into possession the blood stained soil vide memo Ext. PW-4/A. The inquest report was prepared.
The dead body was photographed. It was sent for post mortem examination. Dr. Ashok Rana (PW-9) issued the post mortem report Ext.
PW-9/B. The accused made disclosure statement Ext. PW-3/A, on the basis of which Axe Ext. P-2 was recovered. The complainant also produced stone Ext. P-6 on 22.2.2010. On completion of the investigation, challan was put up after completing all the codal formalities.
3. The prosecution, in order to prove its case, has examined as many as 14 witnesses. The accused was also examined under Section 313 Cr.P.C. He has denied the prosecution case. The learned trial Court convicted and sentenced the accused, as noticed hereinabove. Hence, this appeal.
::: Downloaded on - 15/04/2017 18:00:21 :::HCHP 44. Mr. P.M.Negi, Dy. Advocate General, appearing on behalf of the State, has supported the judgment of the learned trial Court dated .
20.8.2011/25.8.2011.
5. Sh. Narotam Ram, PW-1 testified that in the month of Falgun on 15th he had gone to the temple of deity Girmal at 9:00 AM. He used to beat drum there. At about 8-9 AM, he returned to his home and noticed his father, wife, brother-in-law Khimi Ram and Nitu accused taking liquor. Except those persons, nobody was there. He enquired from his father that as to who invited Nitu accused. Accused got up and fled from there. His father disclosed him that the accused has come with them.
The accused hurled a stone in their room when he went outside and except this accused did not reveal anything and fled away from the spot.
No injury was received by anybody. On the next day there was a Bhandara in the temple of the Deity and he remained busy throughout the day. Aelu Ram was his maternal Uncle. He had revealed all this incident to Aelu Ram who told him to enquire about it from the accused.
He and his maternal uncle Aelu Ram went to village Bradha where accused used to reside. They were sitting in the kacha courtyard of the house of Mohar Singh. They were talking with each other. His maternal uncle Aelu Ram enquired from Mohar Singh about the house of accused.
He disclosed them about the same. He narrated the activities of the accused to Mohar Singh. He noticed the accused from the courtyard of the house of Mohar Singh playing cricket on the road with other children. His uncle Aelu Ram asked the accused as to why he had gone ::: Downloaded on - 15/04/2017 18:00:21 :::HCHP 5 to their house. Except this Aelu Ram did not ask anything. The accused at once left the place and went to his house. They both remained there .
and Mohar Singh went inside his house. At about 1-1:30 PM, accused came there with an Axe in the courtyard of Mohar Singh with a Kilta on his back. The moment accused came there, he at once attacked with Axe on the head of Aelu Ram with full force. The blow was inflicted with axe from its sharp edged side. Due to the blow the cap of Aelu Ram was cut and blood started oozing out from his head. Thereafter, accused fled away from the spot. After this incident, Mohar Singh also came to the spot and whole of the story was narrated to him. Mohar Singh informed the Police on telephone and he tried to give water to his maternal uncle but he was dead. The police came on the spot. His statement was recorded by the police vide Ext. PW-1/A. The police has taken into possession cap. He identified the Axe Ext. P-2. The axe was taken into possession vide memo Ext. PW-1/C. The stone was recovered by the police on 22.3.2010 vide memo Ext. PW-1/D. Kulvi cap is Ext. P-3. The stone is Ext. P-6, which was identified by PW-1 Narotam Ram. In his cross-examination, he deposed that on that date, Mohar Singh and his wife were present in the house. She was also sitting in the courtyard at a distance of about more than two meters. He also admitted that in and around the house of Mohar Singh, there are other houses. The children were playing cricket on the side of the road. The number of those children was 4-5. The accused was also playing cricket with them. He also admitted that the house of accused Khekh Ram is situated at a ::: Downloaded on - 15/04/2017 18:00:21 :::HCHP 6 distance of 600-700 meters upward. He also admitted that on 15.2.2010, accused was stalking his wife. He also used filthy language and abused .
him. He also admitted that the activities of the accused resulted into a scuffle between him and the accused. He did not lodge any report or complaint of the matter regarding throwing of Ext. P-6 in his room to the police or to the Pradhan of the Gram Panchayat.
6. Sh. Mohar Singh, PW-2 testified that at about 2:00 PM on 17.2.2010, Aelu Ram and Narotam, both residents of Gahar came to his house. Aelu Ram inquired about the house of Jogi Ram. They simply inquired about the house and nothing except it was inquired by them from him. Except this, he witnessed nothing. They stayed in his house for about one hour. He noticed the accused running away with an axe in his hand. He also noticed Aelu Ram lying in front of his courtyard. The blood was oozing out from his head. Thereafter, he informed the police through Pradhan of the Gram Panchayat. At about 4:00 PM, the police came to his house from the Police Station Kullu. PW-1 Narotam was holding deceased Aelu Ram and he was shifted to other place in the courtyard. The police lifted the blood stained earth from the spot. The same was put in a parcel and was sealed with six seals of seal-O and taken into possession vide memo Ext. PW-2/A. At the relevant time, his wife was inside the house. In his cross-examination, he categorically admitted that the incident in which deceased was killed did not happen in his presence. He denied that his wife was also sitting in the verandah at that time. Voluntarily stated that she was sitting inside the room.
::: Downloaded on - 15/04/2017 18:00:21 :::HCHP 77. Sh. Raj Kumar, PW-3 testified that accused in the police custody disclosed in is presence and in the presence of the villagers .
including Devi Chand, that he had concealed the axe with which he inflicted the injury to the deceased in the rivulet known as "Tharman nullah". He also disclosed that he had concealed the said axe in the bushes. Memo regarding the disclosure statement of the accused is Ext.
PW-3/A. The accused in pursuance of his disclosure statement Ext. PW-
3/A got recovered the axe Ext. P-2 from the bushes from the rivulet known as "Tharman nullah".
8. Sh. Bhupinder Singh, PW-4 deposed that he received telephonic call from village Bradha regarding the murder of one person resident of village Gahar. He reached the spot at about 2:30 PM. The police was already present on the spot. In his presence, the police took into possession the blood stained earth which was put in the polythene bag and the same was put in the cloth parcel.
9. Const. Baldev Singh, PW-5 deposed that on 22.2.2010, he was present with the I.O. at village Khawor. The complainant Narotam produced a stone Ext. P-6. The same was taken into possession and put in cloth parcel.
10. HC Jawala Singh, deposed that the accused made disclosure statement to the effect that he had kept concealed his clothes, worn by him on the day of incident near Tharman rivulet in the branches of Paza tree. He also disclosed that those clothes were blood stained and that he can get the same recovered from that place. The disclosure statement of ::: Downloaded on - 15/04/2017 18:00:21 :::HCHP 8 the accused was recorded vide memo Ext. PW-6/A. In pursuance to the disclosure statement, the police got recovered the clothes and the same .
were taken into possession by the police.
11. Sh. Hukam Ram, PW-8 deposed that on 15.2.2010, there was a festival known as Fagli in their village. He had gone to the house of Narotam. At about 8:00 PM, he alongwith Khimi Ram were present in the house of Narotam. They were talking with each other. In the meanwhile, accused Nitu and Gulab Chand also came there. At about 9:00 PM, Narotam PW-1 also reached at the house.
r Narotam raised objection regarding the presence of accused. Upon this, Gulab Chand disclosed to him that accused had come with him. Thereafter, accused Khem Singh left the house. From outside the house he pelted two stones. However, no harm was caused to anyone. Thereafter, he left for his house.
12. Dr. Ashok Rana, PW-9 has conducted the post mortem examination on the dead body of Aelu Ram on 18.2.2010. He noticed wound on skull and neck of the deceased. The wound which was found on the neck was present on the anterior aspect of neck at the level of cricoids cartilage measuring 7 cm in length x 3 cm deep, gaping was present extending from left to right side of neck. The margins were incised, cut and lacerated. There was clotted blood present around the skin and internal structure. In addition to this, he also noticed an injury on the skull. There was cut wound spindled shape size was 11.5 cm x 1 cm x 7 cm deep, extending from right parietal region to left occipital region posterior, the margins were incised, cut and lacerated. Clotted ::: Downloaded on - 15/04/2017 18:00:21 :::HCHP 9 blood was present on the skin, in skull fracture of parietal and occipital bones was noticed. Margins of fracture were tapering anteriorly and .
broad base posteriorly which was forming wedge shaped depressed fracture. Splinters of skull bone with margin of fracture near the inner table of skull were present. In the opinion of the Board, the deceased died of severe head injury leading to comma, then cardio respiratory arrest and hence death. The probable duration between injury and death was 0 to few minutes i.e. about 15 minutes approximately and between death and post mortem examination was 18 to 30 hours.
13. HC Ram Krishan, PW-10 deposed that on 17.2.2010, SI Om Chand deposited four parcels in this case with him. First parcel was stated to be containing weapon of offence i.e. axe which was sealed with 12 seals of 'H' alongwith sample seal of 'H'. Second parcel was stated to be containing woolen cap sealed with six seals of 'O'. The third parcel was stated to be containing blood stained soil sealed with six seals of 'O' and fourth parcel was stated to be containing controlled earth which was sealed with six seals of 'O' alongwith sample seal of impression 'O'. He entered all these articles at Sr. No. 30 in the malkhana register. The abstract of the register is Ext. PW-10/A. On the same day, Const. Diwan Chand deposited two parcels with him. One parcel containing wearing apparel of deceased Aelu Ram which was sealed with four seals of 'H' and second parcel stated to be containing viscera of the deceased which was sealed with seal 'CH' was also handed over to him. He entered these articles at Sr. No. 31. On 19.2.2010, SI Om Chand deposited one parcel ::: Downloaded on - 15/04/2017 18:00:21 :::HCHP 10 stated to be containing clothes of the accused which were sealed in a parcel which was sealed with 9 seals of 'B' alongwith sample seal with .
him. He duly entered all these articles in the register No. 19. The case property was sent on 22.2.2010 to FSL, Junga through Const. Sunil Kumar vide RC No. 53/2010. Const. Sunil Kumar, deposited the case property with FSL Junga on 22.2.2010 itself.
14. SI Om Chand, PW-13 has investigated the matter. According to him, on 17.2.2010, he recorded the statement of complainant vide Ext.
PW-1/A. Thereafter, he attested his signature and made endorsement Ext. PW-13/A on Ext. PW-1/A. He took cap into possession. He also took into possession soil sample Ext. P-7. He also took into possession blood stained soil Ext. P-8. The accused has got recovered Axe Ext. P-2.
He measured the same. On 19.2.2010, accused was interrogated by him.
He disclosed in the presence of witnesses HC Hawala Singh and Const.
Krishan that he had concealed blood stained clothes worn by him at Tharman Nallah under a Paza tree and can get the same recovered. He prepared the recovery memo Ext. PW-6/A. Thereafter, the clothes were got recovered. On 22.2.2010, complainant produced a stone Ext. P-6 which was taken into possession vide memo Ext. PW-1/B in the presence of Const. Baldev Singh and Ruma Devi. He prepared the inquest papers after examining the body of the deceased. The neck of the deceased was smeared with blood and as such he could not detect the injury on the cricoids cartilage. In his cross-examination, he admitted that there is courtyard in front of the house of Mohar Singh, PW-2. He also admitted ::: Downloaded on - 15/04/2017 18:00:21 :::HCHP 11 that there are some residential houses adjoining to the house of Mohar Singh. He has not recorded the statements of children since they were of .
the age between 3 to 4 years. He also admitted that the accused had previous enmity with PW-1. Volunteered that accused had visited the house of Narotam in the night of 15.2.2010. He was questioned about his presence in the house of Narotam. Thereafter, he came out and pelted stones upon PW-1. PW-1 had gone alongwith the deceased to inquire from him about this incident. No complaint was made by Narotam to the police about this incident. Mohar Singh was alone in the house and no family member was present there on the date of occurrence. He denied that the wife of Mohar Singh was sitting in the courtyard and PW-1, deceased and Mohar Singh were taking liquor in the courtyard. He had not recorded the statement of wife of Mohar Singh since she was not present in the house.
15. Const. Narender Kumar, PW-14 has proved Ext. PW-14/A and PW-14/B.
16. What emerges from the statement of Narotam Ram, PW-1 is that the accused had pelted stone at his house. He alongwith his maternal Uncle had gone to the house of PW-2 Mohar Singh. His maternal uncle inquired why he has thrown stones on the house of PW-1 Narotam Ram. The accused left the spot and came back with Axe. He gave one blow on the head of Aelu Ram with full force. The cap of Aelu Ram was cut. Blood started oozing out from the head. Thus, according ::: Downloaded on - 15/04/2017 18:00:21 :::HCHP 12 to PW-1 Narotam Ram, only one blow was given and that too on the head of the deceased Aelu Ram.
.
17. PW-9 Dr. Ashok Rana, has noticed two injuries on the body of deceased. He has noticed wound on skull and neck of the deceased. The prosecution has not explained how the deceased received second injury on the neck when according to PW-1 Narotam Ram, only one blow was inflicted by the accused on the head of the deceased.
18. PW-1 Narotam Ram, has stated that when he went with his maternal uncle to the house of Mohar Singh, the wife of Mohar Singh was sitting in the courtyard at a distance of more than two meters. PW-2 Mohar Singh stated that his wife at that time had gone inside the house.
The I.O. PW-13 SI Om Chand testified that no member of the family of Mohar Singh was present in the house. If the statement of PW-1 Narotam Ram is accepted, then Mohar Singh's wife ought to have been examined.
According to PW-1 Narotam Ram, Mohar Singh PW-2 was also sitting in the courtyard but Mohar Singh in his cross-examination has categorically deposed that the incident in which the deceased was killed did not happen in his presence. Mr. P.M.Negi, learned Dy. Advocate General, has argued that Mohar Singh PW-2 has seen the accused running away with the Axe. Merely that PW-2 Mohar Singh has seen the accused running with Axe would not establish that the accused has hit the deceased.
19. PW-1 Narotam Ram, in his cross-examination, admitted that on 15.2.2010, accused was stalking his wife. He also used filthy language and abused him. He also admitted that the activities of the accused ::: Downloaded on - 15/04/2017 18:00:21 :::HCHP 13 resulted into a scuffle between him and the accused. He did not lodge any report or complaint of the matter regarding throwing of Ext. P-6 in his .
room to the police or to the Pradhan of the Gram Panchayat. PW-13 SI Om Chand has also admitted that there was enmity between Narotam Ram and the accused. The enmity between the parties is double edged weapon. The possibility of the accused being falsely implicated due to enmity can also not be ruled out.
20. Their lordships of the Hon'ble Supreme Court in the case of Balbir Vrs. Vazir and others and connected matters, r reported in (2014) 12 SCC 670, have held that motive is a double edged weapon and just as there is a possibility of murders having been committed because of motive due to enmity, there is also a possibility of false implication of innocent people to settle past scores. It has been held as follows:
"12. We are dealing with an appeal against acquittal. The acquittal is not recorded by the trial court but by the High Court. We shall therefore see whether there were sufficient reasons for the High Court to set aside the conviction. We must however bear in mind that if the view taken by the High Court is a reasonably possible view it should not be disturbed because the acquittal of the accused by the High Court has strengthened the presumption of their innocence. We must also mention that according to the prosecution this is a case of strong motive. Land disputes between the two sides and earlier attacks made on deceased Krishna Gir have been deposed to by the witnesses. The High Court has observed that no documentary evidence is produced by the prosecution in support of this case. However, we cannot dismiss the prosecution case of enmity between the two sides lightly because reference to it is made by several witnesses. But that by itself does not help the prosecution. Just as there is a possibility of murders having been committed because of motive due to enmity, there is also a possibility of false implication of innocent people to settle past scores. That is ::: Downloaded on - 15/04/2017 18:00:21 :::HCHP 14 why it is said that motive is a double edged weapon. We shall keep this in mind and approach the case."
.
21. Their lordships of the Hon'ble Suprme Court in the case of Parkash vrs. State of Karnataka, reported in (2014) 12 SCC 133, have held that when the blood stained clothes are recovered, a serological comparison of blood of deceased and appellant and blood stains on his clothes was necessary and that was absent from evidence of prosecution.
In this case, the prosecution has sought to prove that blood group of deceased was AB and blood stains on appellant's seized clothes also belong to blood group AB. This does not lead to any conclusion that bloodstains on appellant's clothes were those of deceased's blood. There are millions of people who have blood group AB and it is quite possible that even appellant had the blood group AB. Thus, merely since clothes of appellant were bloodstained and stains bore same blood group as that of deceased, circumstances could not be used against the appellant.
Their lordships have further held that recovery of crime/incriminating material, at the instance of the accused, is not enough to incriminate the accused, unless it is also established that the recovery of articles connect with the crime. It has been held as follows:
"40. The second discrepant statement was that Shivanna stated that the police had kept Prakash's clothes on the table. It was submitted, in other words, that the blood stained clothes were already seized by the police and kept on the table. We are not sure whether the actual statement made by Shivanna has been lost in translation.
41. In any event, the recovery of the blood stained clothes of Prakash do not advance the case of the prosecution. The reason is that all that the prosecution sought to prove thereby ::: Downloaded on - 15/04/2017 18:00:21 :::HCHP 15 is that the blood group of Gangamma was AB and the blood stains on Prakash's seized clothes also belong to blood group AB. In our opinion, this does not lead to any conclusion that .
the blood stains on Prakash's clothes were those of Gangamma's blood. There are millions of people who have the blood group AB and it is quite possible that even Prakash had the blood group AB. In this context, it is important to mention that a blood sample was taken from Prakash and this was sent for examination. The report received from the Forensic Science Laboratory [Exh.P-27] was to the effect that the blood sample was decomposed and therefore its origin and grouping could not be determined. It is, therefore, quite possible that the blood stains on Prakash's clothes were his own blood stains and that his blood group was also AB.
45. We are not satisfied with the conclusion of the High Court that since the clothes of Prakash were blood stained and the stains bore the same blood group as that of Gangamma, the circumstance could be used Prakash. A serological comparison of the blood of Gangamma and Prakash and the blood stains on his clothes was necessary and that was absent from the evidence of the prosecution."
22. The incident has taken place on 15.2.2010 whereby according to the prosecution, the accused pelted stones at the house of PW-1 Narotam Ram. It has come on record that Narotam Ram has not lodged any complaint with the police and PW-13 SI Om Chand has also admitted that no complaint was lodged with the police about this incident. In case the incident, as per the prosecution version has happened on 15.2.2010 at night, the matter was required to be taken up with the police immediately. It is not believable why Narotam Ram PW-1 and his maternal uncle Aelu Ram would visit the house of accused and that too on 17.2.2010.
23. There were many houses around the house of Mohar Singh but no independent witnesses have been associated from these houses.
The accused is about 25 years of age. It is not believable as per the ::: Downloaded on - 15/04/2017 18:00:21 :::HCHP 16 prosecution version Om Chand PW-13 that he was playing cricket with children of 3-4 years of age.
.
24. Though, human blood was detected on the T- shirt of the accused but the result was inconclusive in respect of the blood groups as per the forensic report. Thus, the prosecution has failed to prove the case against the accused beyond reasonable doubt.
25. Accordingly, the appeal is allowed. Judgment of conviction and sentence dated 20/25.8.2011, rendered by the learned Sessions Judge, Kullu, H.P., in Sessions trial No. 29 of 2010, is set aside.
r The accused is acquitted of the charges framed under Section 302 IPC, by giving him benefit of doubt. Fine amount, if any, already deposited by the accused is ordered to be refunded to him. Since the accused is in jail, he be released forthwith, if not required in any other case.
26. The Registry is directed to prepare the release warrant of the accused and send the same to the Superintendent of Jail concerned, in conformity with this judgment forthwith.
( Rajiv Sharma ), Judge.
April 17, 2015, ( Sureshwar Thakur ),
(karan) Judge.
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