Himachal Pradesh High Court
Dharam Pal And Another vs State Of H.P on 22 June, 2015
Bench: Rajiv Sharma, P.S. Rana
IN THE HIGH COURT OF HIMACHAL PRADESH,
.
SHIMLA:
1. Cr. Appeal No. 13 of 2008.
2. Cr. Appeal No.272 of 2008
3. Cr. Revision No. 57 of 2008.
Judgment reserved on: 2.6.2015.
Date of Judgment: June 22, 2015.
____________________________________________________________
1.Cr.Appeal No. 13 of 2008.
Dharam Pal and another. .....Appellants.
r Vs.
State of H.P. .....Respondent.
____________________________________________________________
For the appellants. Mr.Onkar Jairath, Advocate.
For the respondent: Mr.V.S.Chauhan, Addl. A.G. with
Mr.Vikram Singh Thakur Dy. A.G
2.Cr.Appeal No. 272 of 2008
State of HP. ...Appellant
Vs.
Dharam Pal and others ....Respondents.
___________________________________________________________
For the appellant: Mr.V.S.Chauhan, Addl. Advocate
General with Mr.Vikram Singh
Thakur, Dy. Advocate General.
For respondents 1&2: Mr.Onkar Jairath, Advocate.
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2
For respondent No.3 Mr.Ajay Sharma, Advocate.
.
For respondent No.4 Mr.Rakesh K.Dogra, Advocate.
3.Cr.Revision No. 57 of 2008.
Prithvi Raj S/o Parma Nand ...Revisionist.
Vs.
Dharam Pal and others. Non-revisionists.
____________________________________________________________
For the revisionist:
r to
Mr.N.K.Thakur, Sr. Advocate with
Mr.Rohit Bharoll, Advocate.
For Non-revisionist No.6 Mr.V.S.Chauhan, Addl. A.G. with
Mr.Vikram Singh Thakur, Dy.A.G.
For Non-revisionist-1&2: Mr.Onkar Jairath, Advocate.
For Non-revisionist-3: Mr.Ajay Sharma, Advocate.
For Non-revisionists-4&5: Mr.Rakesh K.Dogra, Advocate.
_____________________________________________________________
Coram:
Hon'ble Mr. Justice Rajiv Sharma, Judge.
Hon'ble Mr.Justice P.S.Rana, Judge.
Whether approved for reporting1?yes.
P.S.Rana, Judge.
JUDGMENT:Criminal Appeal No. 13 of 2008 titled Dharam Pal and another Vs. State of HP, Criminal Appeal No. Whether reporters of the Local papers are allowed to see the judgment? yes.
::: Downloaded on - 15/04/2017 18:25:25 :::HCHP 3272 of 2008 titled State of HP Vs. Dharam Pal and others and .
Criminal Revision No. 57 of 2008 titled Prithvi Raj Vs. Dharam Pal and others are filed against the same judgment and sentence passed by learned Additional Sessions Judge Fast Track Court Una District Una HP in Sessions case No. 12 of 2007 titled State of HP Vs. Dharam Pal and others decided on 31.12.2007. In order to avoid conflict judgment Criminal Appeal No. 13 of 2008, Criminal Appeal No.272 of 2008 and Cr. Revision No. 57 of 2008 are consolidated for disposal.
BRIEF FACTS OF THE PROSECUTION CASE:
2. Brief facts of case as alleged by prosecution are that on dated 21.6.2007 at about 11.30 pm at village Badhmana Tehsil Amb District Una HP accused persons in furtherance of common intention committed murder of Sunil Dutt by way of causing his death. It is further alleged by prosecution that on the same date, time and place accused persons in furtherance of common intention caused simple injuries to Ritender Singh, Sitender, Atul Kumar and Mukal Sood by way of beating them. It is further alleged by prosecution that accused persons in furtherance of common intention voluntarily caused hurt to Ritender Singh with sharp ::: Downloaded on - 15/04/2017 18:25:25 :::HCHP 4 edged weapon. It is further alleged by prosecution that at the .
same date, time and place accused persons committed mischief by causing damage to maruti car of Jiwan Singh bearing registration No. HP-19A-4696. It is further alleged by prosecution that marriage of one Raj Kumar resident of Amb took place on dated 21.6.2007 at village Badhmana Tehsil Amb District Una. It is further alleged by prosecution that marriage party reached at village Badhmana at about 10 PM and marriage was also attended by the friends of Raj Kumar namely Mukal Sood, Ritender Singh, Sitender and Atul Kumar and deceased Sunil Kumar. It is further alleged by prosecution that they have gone to village Badhmana in a car bearing registration No. HP-19-4696 and reached at Badhmana at about 10.30 PM. It is further alleged by prosecution that thereafter they met with bridegroom and his father who asked them to take dinner and thereafter all of them except Vineet Kumar went to the house of bride to take meals. It is further alleged by prosecution that there was rush at the dinning place and they were asked by the people from bride side to sit in the verandah on the roof of bride house. It is further alleged by prosecution that co-accused Dharam Pal along with his two ::: Downloaded on - 15/04/2017 18:25:25 :::HCHP 5 children and two other persons were also sitting on the roof of .
house. It is further alleged by prosecution that deceased Sunil Kumar told that co-accused Dharam Pal was the captain of their football team. It is further alleged by prosecution that thereafter co-accused Dharam Pal did not respond and thereafter deceased Sunil Kumar asked co-accused Dharam Pal whether he was angry with him upon which co-accused Dharam Pal told to deceased Sunil Kumar that he was not angry and he shook hands with deceased Sunil Kumar. It is further alleged by prosecution that thereafter there was a call for dinner and the persons sitting on the roof of house started coming down and while coming down co-accused Dharam Pal pushed deceased Sunil Kumar due to which altercation took place between them and there was a scuffle between Dharam Pal and Ritender Singh but they were separated by PW4 Gurpiara. It is further alleged by prosecution that thereafter co-accused Dharam Pal called other persons present in the court yard and thereafter co-accused Ajit Kumar, Sanjiv Kumar @ Happy and some other persons came there and thereafter co-accused Dharam Pal and co-accused Ajit Kumar beaten deceased Sunil Kumar and co-accused Kewal Krishan ::: Downloaded on - 15/04/2017 18:25:25 :::HCHP 6 and Sanjeev Kumar have beaten Mukal Sood, Ritender Singh .
Sitender and Atul Kumar. It is further alleged by prosecution that thereafter co-accused Dharam Pal caused injury to deceased Sunil Kumar with sharp edged weapon in his chest and blood started oozing out from the chest of deceased Sunil Kumar. It is further alleged by prosecution that thereafter Mukal Sood, Satinder and Atul Kumar brought deceased Sunil Kumar to road side and as soon as the injured was placed in a car co-accused Dharam Pal, co-accused Ajit Kumar, co-
accused Kewal Krishan and one Rajiv Kumar resisted and pelted stones on car and broken window panes of car. It is further alleged by prosecution that thereafter injured was brought to civil hospital Chintpurni but hospital was closed and thereafter injured was brought to civil hospital Amb where the doctor declared him dead and informed police officials. Charges were framed by learned Additional Sessions Judge Una on dated 10.10.2007. Accused persons did not plead guilty and claimed trial.
3. Prosecution examined following oral witnesses in support of its case:
::: Downloaded on - 15/04/2017 18:25:25 :::HCHP 7Sr.No. Name of Witness .
PW1 Mukal Sood
PW2 Satinder Kumar
PW3 Atul
PW4 Gurpiara
PW5 Jagish Ram@ Kaka
PW6 Ratinder Singh
PW7r Dhani Ram
PW8 Rajesh Kumar
PW9 H.C. Rajesh Kumar
PW10 Sh. Ashok Kumar
PW11 H.C. Pawan Kumar
PW12 Dr. S.K. Bansal
PW13 Sh. Kuldeep Chand
PW14 Sh. Makhan Singh
PW15 Sh. Krishan Dutt
PW16 Dr. R.K. Garg
PW17 Dr. M.K. Pathak
PW18 M.H.C. Kusha Dutt
PW19 HHC Ashwani Kumar
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PW20 HHC Sarup Lal
.
PW21 Inspector Mehar Chand
4. Prosecution also produced following piece of documentary evidence in support of its case:-
Sr.No. Description:
Ex. PW 1/A Statement of Mukal Sood u/s
154 Cr.P.C.
Ex. PW 1/B Memo recovery Maruti Car No.
Hp.19-a-4696 along with RC /IC
and key.
Ex. PW 8/A Memo recovery of blood
Ex. PW 9/A Memo recovery of pant and shirt
Ex. PW 10/A Memo recovery of pant, shirt and
vest.
Ex. PW 10/B Memo regarding disclosure
statement of co-accused Ajit
Kumar.
Ex. PW 11/A Memo recovery blood stained
knife (iron)
Ex. PW 12/A Report FSL, Junga
Ex. PW 12/B Post Mortem Report
Ex. PW 12/C Application for conducting post
Mortem
Ex. PW 13/A Rough sketch of weapon of offence
Ex. PW 16/A Application for medical
examination of Mukal Sood.
Ex. PW 16/B MLC of Mukal Sood.
Ex. PW 16/C&D Application for medical and MLC
of Satinder
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9
Ex. PW 16/E&F Application and medical of Atul
.
Kumar.
Ex. PW 16/G&H Application and MLC of Ritender
Singh.
Ex. PW 16/J&K Application for medical and MLC
of Dharam Pal
Ex. PW 16/L MLC of Ajit Kumar
Ex. PW 20/A Mechanical report of accidental
vehicle.
Ex. PW 21/A Rapat No. 25 dated 22.6.2007
Ex. PW 21/B Death Report(Form No 25,35)
Ex. PW 21/C & Statement of Mukal Sood u/s
21/E 154 Cr.P.C
Ex. PW 21/D FIR
Ex. PW 21/F,G Site Plans
Ext PW21/H&J Information of arrest.
Ex. PW 21,1/4K Application for taking blood sample.
Ex. PW 21,1/4 L Statements of PW Mukal Sood to R Ratinder Singh, Satinder, Atul Kumar, Gurpiara, Jagdish and Dhani Ram u/s 161 Cr.P.C Ex. PW 21/S&1/T Report FSL Junga Ex. PW 21/U Statement of Makhan Singh u/s 161 Cr.P.C.
Ex. PW 21/V Site Plan of House of Gurbux
Singh
Ex. PW 21/Wto Seal impression
Z
Ext PW21/1 to Photographs and negatives of 25 photographs.
::: Downloaded on - 15/04/2017 18:25:25 :::HCHP 105. Learned trial Court acquitted co-accused Dharam .
Pal, co-accused Ajit Kumar and co-accused Kewal Krishan qua criminal offence punishable under Sections 302, 323 and 324 IPC. Learned trial Court convicted co-accused Dharam Pal, co-accused Ajit Kumar and co-accused Kewal Krishan qua criminal offence punishable under Section 427 IPC.
Learned trial Court acquitted co-accused Gurbax Singh and co-accused Rukam Deen qua criminal offence punishable under Section 201 IPC. Learned trial Court after hearing convicted persons upon quantum of sentence observed that co-accused Dharam Pal and co-accused Ajit Kumar were arrested on dated 23.6.2007 and co-accused Kewal Krishan was arrested on dated 26.6.2007. Learned trial Court further held that all the convicted persons were in judicial custody for more than six months. Learned trial Court sentenced all the convicted persons to imprisonment for the period which they have already undergone in judicial custody and in addition learned trial Court sentenced all convicted persons to pay fine to the tune of Rs.2,000/- each. Learned trial Court further directed that in default of payment of fine convicted persons would go simple imprisonment for a period of one month.
::: Downloaded on - 15/04/2017 18:25:25 :::HCHP 116. Feeling aggrieved against the judgment and .
sentence passed by learned trial Court Criminal Appeal No. 13 of 2008, Criminal Appeal No. 272 of 2008 and Criminal Revision No. 57 of 2008 were filed.
7. We have heard learned Advocates and learned Additional Advocate General and we have also gone through the entire record carefully.
8. Point for determination before us is whether learned trial court did not properly appreciate oral as well as documentary evidence placed on record and whether learned trial Court had committed miscarriage of justice.
9.ORAL EVIDENCE ADDUCED BY PROSECUTION:
9.1 PW1 Mukal Sood has stated that he is running a shop of ready made garments at Amb. He has stated that on dated 21.6.2007 he along with his friends Rocky, Bantu, Atul, Vaneet and Sunil went to the house of his friend namely Raj Kumar at Amb to attend his marriage at about 7.30 pm. He has stated that when they reached there at that time marriage party had already moved for village Badhmana. He has stated that thereafter they went to village Badhmana and reached Badhmana at about 10.30 pm. He has stated that firstly they ::: Downloaded on - 15/04/2017 18:25:25 :::HCHP 12 met the bridegroom and his father who asked them to take .
dinner in the house of bride. He has stated that thereafter they all went to the house of bride. He has stated that there was rush at the dinning place and they were asked by the people from bride side to go to upstairs and wait there for some time. He has stated that brother of bridegroom and co-
accused Dharam Pal and 2/3 other persons were sitting upon the roof of house and they shook hands with the brother of bridegroom. He has stated that deceased Sunil Kumar told them that co-accused Dharam Pal was the captain of football team in their school. He has stated that thereafter deceased Sunil Kumar went near to co-accused Dharam Pal and inquired from him whether he was angry with deceased Sunil Kumar upon which co-accused Dharam Pal told that he was not angry with deceased Sunil Kumar. He has stated that thereafter co-accused Dharam Pal started moving downward to take meal and after him deceased Sunil Kumar and Bantu also started moving downward to take meal. He has stated that after two minutes he heard that fight took place and he rushed towards the spot of quarrel and saw that Bantu and co-accused Dharam Pal were quarrelling with each other while ::: Downloaded on - 15/04/2017 18:25:25 :::HCHP 13 deceased Sunil Kumar was trying to separate them. He has .
stated that thereafter co-accused Dharam Pal raised cries and thereafter 10/15 boys came on the roof and without listening anything started beating them. He has stated that those persons beaten him, Rocky, Bantu, Atul and Sunil. He has stated that in the meanwhile he saw that deceased Sunil Kumar was sitting on the chair and Sunil Kumar told him that co-accused Dharam Pal had given serious injury to him with sharp edged weapon. He has stated that Sunil Kumar told him to take him to hospital for medical treatment. He has stated that he had not seen who had caused injury to deceased Sunil Kumar. He has stated that thereafter they placed the injured in a car. He has stated that when they started moving from the place of incident co-accused Dharam Pal, co-accused Kewal Krishan and younger brother of Dharam Pal present in Court did not allow them to take the injured to hospital and they broken window panes of the vehicle with the help of stones. He has stated that one of the accused person dragged deceased Sunil Kumar out side the car and they again managed to place deceased Sunil Kumar in the car. He has stated that thereafter deceased Sunil Kumar was brought to ::: Downloaded on - 15/04/2017 18:25:25 :::HCHP 14 hospital at Chintpurni. He has stated that hospital at .
Chintpurni was closed and they brought deceased Sunil Kumar to hospital at Amb. He has stated that deceased Sunil Kumar was declared dead. He has stated that thereafter police officials visited at the spot and recorded his statement Ext PW1/A which bears his signature. He has stated that during the investigation car having registration No. HP-19A-4696 with broken window panes took into possession vide seizure memo Ext PW1/B which bears his signature. He has stated that he did not see anybody inflicting injury upon deceased Sunil Kumar. Witness was declared hostile by prosecution and witness was cross-examined. He has denied suggestion that co-accused Dharam Pal and co-accused Ajit Kumar have inflicted injury upon deceased Sunil Kumar with sharp edged weapon. He has denied suggestion that he had suppressed the facts of causing injury to deceased Sunil Kumar by co-accused Dharam Pal. He has denied suggestion that he had compromised the matter with accused persons. He has stated that 300/400 persons were present in the marriage ceremony.
He has denied suggestion that accused persons did not hurl any bricks upon car.
::: Downloaded on - 15/04/2017 18:25:25 :::HCHP 159.2 PW2 Satinder Kumar has stated that he is .
running a cloth shop at Amb. He has stated that on dated 21.6.2007 he along with Ratinder, Atul, Sunil, Vaneet and Mukal Sood went to village Badhmana to attend the marriage of his friend Raj Kumar. He has stated that they reached at village Badhmana at about 10.30 pm. He has stated that they firstly met Raj Kumar and his father and thereafter they went to bride house to take meals. He has stated that when they reached in the house of bride they were told that there was no space for taking meal and they were requested to go to upper portion of house and sat on the chair. He has stated that he and deceased Sunil Kumar asked co-accused Dharam Pal as to why he was not talking with them. He has stated that thereafter co-accused Dharam Pal told that there was nothing and he shook hands with him. He has stated that in the meanwhile there was a call for dinner upon which co-accused Dharam Pal came down from upper portion of house. He has stated that thereafter his brother Bantu also came down. He has stated that thereafter quarrel took place between co-
accused Dharam Pal and deceased Sunil Kumar and one person separated them. He has stated that some noise came ::: Downloaded on - 15/04/2017 18:25:25 :::HCHP 16 that quarrel took place but he does not know what happened.
.
He has stated that thereafter he saw that deceased Sunil Kumar was in injured condition and he was sitting on the chair. He has stated that he does not know who had inflicted injuries upon deceased Sunil Kumar. He has stated that thereafter injured was brought to a car and took him to hospital for medical treatment. He has stated that co-accused Dharam Pal, brother of co-accused Dharam Pal and co-
accused Kewal Krishan pelted stones upon car and obstructed them and they broken window panes of the car. He has stated that thereafter they took injured to hospital at Chintpurni but the hospital was closed and thereafter injured was brought to civil hospital at Amb where deceased Sunil Kumar was declared dead by medical officer. He has stated that during investigation he produced his car to the investigating agency along with documents which were took into possession vide seizure memo Ext PW1/B which bears his signature. He has stated that he does not know who had caused injury to deceased Sunil Kumar. Witness was declared hostile by prosecution. He has denied suggestion that co-accused Dharam Pal had caused injury upon deceased Sunil Kumar ::: Downloaded on - 15/04/2017 18:25:25 :::HCHP 17 with sharp edged weapon in his presence. He has denied .
suggestion that co-accused Dharam Pal had pushed deceased Sunil Kumar with his shoulder. He has denied suggestion that he had entered into compromise with co-accused Dharam Pal.
He has stated that he identified co-accused Dharam Pal, co-
accused Ajit Kumar and co-accused Kewal Krishan in Court.
He has denied suggestion that co-accused Dharam Pal, co-
accused Ajit Kumar and co-accused Kewal Krishan did not hurl any stones on the car. He has denied suggestion that he deposed falsely regarding pelting stones by accused persons.
9.3. PW3 Atul has stated that he is shopkeeper at Amb. He has stated that on dated 21.6.2007 he along with Ratinder, Satinder, Sunil Kumar, Vaneet and Mukal Sood went to village Badhmana to attend the marriage of Raj Kumar in a car and they reached there at about 10 pm. and after meeting with Raj Kumar and his father they went to the house of bride to take meals. He has stated that there was rush of people who were taking meals on the ground floor of the house and they were asked to sit upon upper portion of house. He has stated that on the upper portion of house co-accused Dharam Pal, his children and 3/4 other persons were already ::: Downloaded on - 15/04/2017 18:25:25 :::HCHP 18 sitting on the upper portion of house. He has stated that .
deceased Sunil Kumar told that co-accused Dharam Pal was the captain of football team in the school but co-accused Dharam Pal was not talking with them. He has stated that thereafter co-accused Dharam Pal came and shook hands with deceased Sunil Kumar. He has stated that thereafter a call came to take meal and thereafter co-accused Dharam Pal came down along with Bantu and Sunil Kumar. He has stated that in the meanwhile he heard noise that quarrel took place and he came down and separated co-accused Dharam Pal and Bantu. He has stated that thereafter somebody slept deceased Sunil Kumar. He has stated that thereafter some persons came at upper portion of house and also beaten them. He has stated that deceased Sunil Kumar had sustained serious injuries and he was brought down and was placed in car. He has stated that as soon as deceased Sunil Kumar was placed in car co-accused Dharam Pal and other persons did not allow them to go ahead. He has stated that thereafter co-accused Dharam Pal and co-accused Ajit Kumar and some other persons whom he does not know pelted stones on car. He has stated that ultimately they took deceased Sunil Kumar to ::: Downloaded on - 15/04/2017 18:25:25 :::HCHP 19 hospital. He has stated that hospital at Chintpurni was closed .
and thereafter deceased Sunil Kumar was brought to hospital at Amb. He has stated that he does know who had caused injury to deceased Sunil Kumar. Witness was declared hostile.
He has denied suggestion that co-accused Dharam Pal had caused injury upon deceased Sunil Kumar with sharp edged weapon in his presence. He has denied suggestion that he had not disclosed the name of co-accused Dharam Pal as assailant in order to save him. He has denied suggestion that co-
accused Dharam Pal and co-accused Ajit Kumar did not try to stop car.
9.4 PW4 Gurpiara has stated that he is working with M/s Ashok Kumar Satish Kumar merchant at Amb. He has stated that Raj Kumar is his nephew and his marriage took place on dated 21.6.2007. He has stated that on dated 21.6.2007 he went to village Badhmana with marriage party and reached there at about 9.30 pm. He has stated that after receipt of marriage party from the side of bride they were requested to take dinner. He has stated that after taking dinner he along with one of his relative who was about 75 years of age went to the upper portion of house. He has stated ::: Downloaded on - 15/04/2017 18:25:25 :::HCHP 20 that 4/5 persons were already sitting on upper portion of .
house. He has stated that Banti and Pawan started quarrelling and he asked them not to quarrel. He has stated that he was told by Banti that his sandal was lost. He has stated that in the meantime number of persons came to upper portion of house from down side and they were quarrelling with each other. He has stated that he does not know what happened thereafter. Witness was declared hostile and was cross examined. He has stated that he heard noise of breaking of window of panes car. He has admitted that in the morning they heard that Sunil Kumar had died. He has denied suggestion that he had suppressed material facts from the Court just to save accused persons. He has stated that he came back in the morning from house of bride.
9.5 PW5 Jagdish Ram has stated that he is running a shop at Amb. He has stated that on dated 21.6.2007 there was marriage of his brother Raj Kumar. He has stated that marriage party had gone to village Badhmana and they reached there at about 9.30 pm. He has stated that he was also one of the members of marriage party. He has stated that after some marriage ceremony they were asked to take dinner ::: Downloaded on - 15/04/2017 18:25:25 :::HCHP 21 in the house of bride. He has stated that since there was no .
space for dinner they were asked to wait and sat on upper portion of house. He has stated that numbers of people were sitting on the upper portion of house including co-accused Dharam Pal and co-accused Ajit Kumar. He has stated that co-accused Kewal Krishan was not present on the upper portion of house. Witness was declared hostile. He has denied suggestion that deceased Sunil Kumar was sitting on the chair in an injured condition. He has denied suggestion that co-
accused Kewal Krishan was sitting on upper portion of house along with co-accused Dharam Pal. He has denied suggestion that co-accused Dharam Pal had caused injury to deceased Sunil Kumar with sharp edged weapon. He has denied suggestion that he has resiled from his earlier statement in order to save accused persons. He has admitted that co-
accused Dharam Pal and his two small children were present.
9.6 PW6 Ratinder Singh has stated that he is working as Assistant Secretary co-operative society Amb. He has stated that on dated 21.6.2007 he along with his brother Satinder, Atul, Mukal Sood, Vineet Kumar and Sunil Kumar went to village Badhmana to attend marriage of Raj Kumar. He has ::: Downloaded on - 15/04/2017 18:25:25 :::HCHP 22 stated that they reached at about 10 pm at village Badhmana .
and met bridegroom and his father and went to the house of bride to take meals. He has stated that there was crowd of people who were taking meals and they were sent upstairs to wait for taking meals. He has stated that on upper portion of house co-accused Dharam Pal, co-accused Kewal Krishan, one Jagdish and other persons were already sitting there. He has stated that deceased Sunil Kumar told that co-accused Dharam Pal was the captain of football team of their school but he was not talking with deceased Sunil Kumar. He has stated that in the meanwhile co-accused Dharam Pal came to deceased Sunil Kumar and shook hands with him. He has stated that thereafter call came for dinner and co-accused Dharam Pal and others went downward to take dinner. He has stated that thereafter he along with Sunil Kumar, Atul, Satinder and Mukal also went downward for taking meals and when they were going downward then co-accused Dharam Pal came upward and pushed Sunil Kumar who fell down. He has stated that thereafter he and co-accused Dharam Pal started hot exchanges and thereafter they came to the blows. He has stated that in the meanwhile Gurpiara came on the roof and ::: Downloaded on - 15/04/2017 18:25:25 :::HCHP 23 separated them. He has stated that his sandal was lost .
somewhere. He has stated that thereafter Atul and Satinder handed over sandal to him. He has stated that thereafter they were going downward through stairs then Happy, Kewal Krishan and Ajit came upward and they started beating deceased Sunil Kumar and four other persons have also beaten them. He has stated that he does not know what happened thereafter. He has stated that deceased Sunil Kumar was sitting on the chair and he requested to bring car to take deceased Sunil Kumar to hospital. He has stated that thereafter he brought car. He has stated that Mukal, Atul and Satinder brought deceased Sunil Kumar to the car. He has stated that co-accused Dharam Pal, co-accused Ajit Kumar and co-accused Kewal Krishan started pelting stones on the car. He has stated that thereafter they placed deceased Sunil Kumar in car with great struggle and took him to hospital at Chintpurni which was locked. He has stated that thereafter deceased Sunil Kumar was brought to Amb hospital. He has stated that during investigation police officials took into possession car vide memo Ext PW1/B. He has stated that he did not see any injury given to deceased Sunil Kumar. Witness ::: Downloaded on - 15/04/2017 18:25:25 :::HCHP 24 was declared hostile. He has denied suggestion that co-
.
accused Dharam Pal or his brother Ajit Kumar have given injury on the chest of deceased Sunil Kumar. He has denied suggestion that co-accused Dharam Pal had given blows to deceased Sunil Kumar with sharp edged weapon in his presence. He has denied suggestion that he had resiled from his earlier statement because he has compromised with accused persons. He has denied suggestion that he deposed falsely regarding pelting of stones on the car by accused persons.
9.7. PW7 Dhani Ram has stated that he is working as Chowkidar in Gram Panchayat Amb. He has stated that Raj Kumar is his younger son. He has stated that on dated 21.6.2007 marriage of his son Raj Kumar was solemnized at village Badhmana. He has stated that marriage party reached at about 10 pm. He has stated that some friends of his son were also present in the marriage party but he does not know their names. He has stated that after performing some marriage ceremony they went to the house of bride for taking meal. He has stated that some people have started consuming meal but due to rush other persons were asked to take meal ::: Downloaded on - 15/04/2017 18:25:25 :::HCHP 25 after some time. He has stated that after taking meal he along .
with some other members of marriage party proceeded towards 'Dera' (Place for the stay of marriage party). He has stated that he heard noise and fight and thereafter he was asked by his brother-in-law to go and see what had happened.
He has stated that he did not see anything. He has admitted that marriage was attended by the friends of his son namely Ratinder, Satinder, Atul, Sunil, Vaneet and Mukal Sood. He has admitted that he heard noise and fight from the roof of house. He has denied suggestion that he was informed that co-accused Dharam Pal and co-accused Ajit Kumar caused injury upon deceased Sunil Kumar with sharp edged weapon.
He has stated that he could not state that co-accused Dharam Pal, co-accused Ajit Kumar and one Happy along with other persons pelted stones on the car in which deceased Sunil Kumar was taken to hospital. He has stated that stones were pelted on the car but he does not know who pelted stones. He has stated that he does not know that Ratinder and Satinder were also beaten by accused persons. He has admitted that co-accused Dharam Pal and co-accused Ajit Kumar are his relatives and he has good relation with them. He has denied ::: Downloaded on - 15/04/2017 18:25:25 :::HCHP 26 suggestion that he deposed falsely in order to save accused .
persons being his relatives.
9.8 PW8 Rajesh Kumar son of Amar Singh has stated that he was associated in the investigation of present case. He has stated that in his presence the investigating agency collected blood from the pillar and from leg of chair from the house of Gurbax Singh and thereafter the same was placed in small bottle which was sealed with seal impression 'M'. He has stated that thereafter blood taken from the leg of chair was placed in match box and sealed with seal impression 'M'. He has stated that memo Ext PW8/A was prepared which bears his signature.
9.9 PW9 Rajesh Kumar HC has stated that he was posted as Head Constable in police station Amb in the year 2005. He has stated that on dated 22.6.2007 he was associated in the investigation of present case. He has stated that on the same day Satinder Singh produced car having registration No. HP-19A-4696 along with documents and key.
He has stated that front panes of the car were broken. He has stated that there were pieces of glass, stones and one shoe of right foot in the car. He has stated that Investigating Officer ::: Downloaded on - 15/04/2017 18:25:25 :::HCHP 27 took into possession all the articles vide seizure memo Ext .
PW1/B. He has stated that stones Ext P3, pieces of glass Ext P4 and shoes Ext P5 are the same which were took into possession by Investigating Officer in his presence. He has stated that on dated 23.6.2007 co-accused Ajit Kumar had produced his clothes to investigating agency in his presence which were took into possession vide memo Ext PW9/A. He has stated that pant Ext P6 and shirt Ext P7 are the same which were produced by co-accused Ajit Kumar before investigating agency. He has denied suggestion that nothing was produced in his presence. He has denied suggestion that clothes Ext P6 and Ext P7 did not belong to co-accused Ajit Kumar. He has denied suggestion that he deposed falsely being police official.
9.10. PW10 Ashok Kumar has stated that on dated 23.6.2007 he joined investigation in the present case. He has stated that in his presence police officials took into possession clothes of co-accused Ajit Kumar. He has stated that clothes of co-accused Dharam Pal were also took into possession by investigating agency in his presence. He has stated that co-
accused Dharam Pal produced shirt, pant and undergarments ::: Downloaded on - 15/04/2017 18:25:25 :::HCHP 28 which were torn from left shoulder. He has stated that clothes .
of co-accused Dharam Pal were sealed by investigating agency in a sealed parcel with seal impression 'MC' and memo Ext PW10/A was prepared. He has stated that shirt Ext P8, pant Ext P9 and undergarments Ext P10 are the same which were produced before investigating agency by co-accused Dharam Pal. He has stated that co-accused Ajit Kumar had made disclosure statement to investigating agency in his presence that he had concealed knife in the bushes and he could recover the same. He has stated that disclosure statement bears his signature. He has denied suggestion that co-accused Ajit Kumar did not give any disclosure statement to investigating agency regarding recovery of knife. He has denied suggestion that co-accused Dharam Pal and co-
accused Ajit Kumar did not produce any clothes to investigating agency in his presence.
9.11. PW11 Pawan Kumar has stated that on dated 22.6.2007 he was associated in the investigation of present case. He has stated that Satinder Kumar produced his car along with documents and key to the investigating agency. He has stated that in the car there were stones, broken pieces of ::: Downloaded on - 15/04/2017 18:25:25 :::HCHP 29 glass and shoes which were took into possession by .
investigating agency vide recovery memo Ext PW1/B. He has stated that stones Ext P3, pieces of glass Ext P4 and shoes Ext P5 are the same. He has stated that co-accused Ajit Kumar led police officials to the bushes behind the house of Gurbax Singh and thereafter knife stained with blood was recovered. He has stated that photographs were also obtained and sketch of knife was also prepared. He has stated that knife Ext P11 was recovered at the instance of co-accused Ajit Kumar. He has denied suggestion that alleged place of recovery was field. He has denied suggestion that alleged place of recovery was approachable to all. He has denied suggestion that no recovery was effected in his presence.
9.12. PW12 Dr.S.K.Bansal has stated that he was posted as medical officer District Hospital Una since 2002. He has stated that on dated 22.6.2007 at about 4.30 pm he conducted post mortem of deceased Sunil Kumar and observed as follow: "Moderately built, moderately nourished, intact body of adult male rigor mortis present, Post mortem staining present over dependant parts. 2.5" wound with clear cut margins present in left fifth intercostals' space. Wound ::: Downloaded on - 15/04/2017 18:25:25 :::HCHP 30 was gapping margins were retracted, copious blood present at .
wound site. Wound was penetrating in nature 10 CM deep.
Cranium and spinal cord within normal limits. 2.5" cut wound present over left side chest, left lung had 1.5cm ruptured wound at level of apex of heart. Apex PF heart has a punctured wound of 1cm x 0.5cm in size about two liters of clotted blood was present in thoracic cavity surrounding the heart and abdomen within normal limits." He has stated that deceased Sunil Kumar died due to rupture of left lung and heart leading to massive loss of blood and due to hemorrhage shock. He has stated that time between injury and death within few minutes and time within death and post mortem within 24 hours. He has stated that no poison was detected in the viscera as per report of chemical analyst Ext PW12/A. He has stated that he issued post mortem report Ext PW12/B which bears his signature. He has stated that injury on the person of deceased Sunil Kumar is not possible with knife Ext P11 shown to him in Court. He has denied suggestion that width of wound has been wrongly written as 2.5" in place of 2.5 cm. He has admitted that Dr. Umesh Gautam was also member of the board and he also signed post mortem report ::: Downloaded on - 15/04/2017 18:25:25 :::HCHP 31 Ext PW12/B. He has admitted that dead body was having only .
one injury which was possible with one blow.
9.13. PW13 Kuldeep Chand has stated that he is agriculturist by profession and Ex-Pradhan Gram Panchayat Indora. He has stated that on dated 26.6.2007 he was associated in the investigation of present case. He has stated that co-accused Ajit Kumar was present in police station. He has stated that knife was recovered at the instance of co-
accused Ajit Kumar. He has stated that knife was placed in a cloth parcel and sealed with seal impression 'J'. He has stated that knife Ext P11 is the same. He has denied suggestion that behind the house of Gurbax Singh there is open field. He has denied suggestion that place of recovery was open and approachable to all. He has denied suggestion that no recovery was effected in his presence. He has denied suggestion that he deposed falsely at the instance of police officials.
9.14. PW14 Makhan Singh has stated that he is labourer by profession. He has stated that he is residing at village Darwari. He has stated that Jaswant Singh and Gurbax Singh are running a tent house at Jallo-de-bar. He has stated ::: Downloaded on - 15/04/2017 18:25:25 :::HCHP 32 that he was engaged by Jaswant Singh and Gurbax Singh to .
fix tent in the house of Jaswant Singh. He has stated that marriage party reached at about 10 pm in the house of Jaswant Singh at village Badhmana. He has stated that he arranged lights in the passage. He has stated that when they were in the field they heard noise of fight amongst marriage party on roof of the house of Jaswant Singh. He has stated that place where the fight was going was not visible from the field where he was present. He has stated that he did not visit the place of fight. He has stated that thereafter marriage party left the place and they went upstairs and saw that some blood was lying on the leg of chair. He has stated that he does not know who washed blood from that place. He has denied suggestion that at the time of fight he was present at the spot.
He has denied suggestion that he was arranging chairs and meals on the roof of house. He has denied suggestion that in his presence some boys took injured to down side from the roof and placed injured in car. He has denied suggestion that when injured was placed in car then accused persons hurled stones on the car. He has denied suggestion that father of bride had washed blood from chair, pillar and roof of the ::: Downloaded on - 15/04/2017 18:25:25 :::HCHP 33 house through co-accused Rukam Deen. He has stated that .
he does not know accused persons present in Court. He has denied suggestion that he resiled from his earlier statement in order to save accused persons.
9.15. PW15 Krishan Dutt has stated that he joined investigation in present case. He has stated that on dated 26.6.2007 co-accused Ajit Kumar was in police custody. He has stated that in his presence he disclosed that he had concealed knife behind bushes at village Badhmana. He has stated that disclosure statement Ext PW10/B was prepared by investigating agency which bears his signature. He has stated that deceased Sunil Kumar was his relative. He has stated that he did not attend marriage in which alleged occurrence took place. He has denied suggestion that co-accused Ajit Kumar did not give any disclosure statement. He has denied suggestion that he deposed falsely because he is relative of deceased Sunil Kumar. He has stated that co-accused Ajit Kumar was not known to him earlier.
9.16. PW16 Dr.R.K.Garg has stated that he was posted at CHC Amb in the year 2000. He has stated that he medically examined Mukal son of Sandeep Sood on dated 22.6.2007 at ::: Downloaded on - 15/04/2017 18:25:25 :::HCHP 34 7.10 pm and found following injuries. (1) 10 cm long abrasion .
with bruises was seen on the back of neck extending up to lateral side of neck. (2) Left elbow had multiple small wound on the postrial side. Swelling was present. X-ray was advised. (3) Blunt trauma to the left knee joint on lateral side.
He has stated that injured person refused to get X-ray conducted. He has stated that all the injuries were opined as simple caused with blunt object with probable duration of 10 to 24 hours. He has stated that he issued MLC Ext PW16/B which bears his signature. He has stated that on the same day as per request of investigating agency he also medically examined Satinder and found following injuries. (1). Right hand ring finger has penetrating wound on both sides. Wound had stated crushed formation. (2) Two lines parallel bruises was seen on the upper arm biceps region. (3) A small abrasion on the both fore arm 4 to 6 cms and lungs were present. (4) Blunt trauma to the left ear with hearing loss. He has stated that injuries No. 1 to 3 were simple in nature caused with blunt weapon with probable duration of 12 to 24 hours. He has stated that as per N&T Surgeon injury No.4 was simple in nature. He has stated that he issued MLC Ext. PW16/D. He ::: Downloaded on - 15/04/2017 18:25:25 :::HCHP 35 has stated that on the same day on the application of .
investigating agency he also examined Atul Kumar and observed that multiple small bruise area were seen on the back. He has stated that all injuries were simple in nature caused with blunt weapon. He has issued MLC Ext PW16/F. He has stated that on the same day he also examined Ratinder Singh and observed (1) 1 cm long cut and incised wound on the right elbow (2) 1 cm long cut and incised wound on the left thigh upper area were present.He has stated that both injuries were simple caused with sharp edged weapon.
He has stated that probable duration was 12 to 24 hours. He has stated that he issued MLC Ext PW16/H which bears his signature. He has stated that injuries on the persons of Mukal, Atul and Satinder could be caused during scuffle with fist and kick blows. He has stated that injuries on the person of Ratinder Singh could be caused if person strike against sharp object iron angle during scuffle. He has stated that injuries on the person of Ratinder Singh were superficial and skin deep. He has stated that possibility of self inflicted injuries on the person of Ratinder Singh could not be ruled out. He has stated that he also examined co-accused Dharam ::: Downloaded on - 15/04/2017 18:25:25 :::HCHP 36 Pal and found following injuries. (1) Multiple small abrasion .
on the right side of neck with crushed formation was seen. (2) A small abrasion on the upper lip right side no swelling was seen. (3) Blunt trauma to the left eyebrow area. No swelling was seen. (4) Patient was complaining of pain on whole of scalp. No loose hairs were present. (5) Blunt trauma to the right thigh. (6) Blunt trauma to the right elbow and right hand. He has stated that all injuries were simple in nature with duration of 2 to 3 days caused with blunt weapon. He has stated that he issued MLC Ext PW16/K which bears his signature. He has stated that on the same day he also examined co-accused Ajit Kumar and found no injury on his person. He has stated that he issued MLC Ext PW16/L which bears his signature. He has stated that injuries could be caused if person fell on hard surface while running. He has stated that injuries No.3,4,5 and 6 are not visible injuries. He has stated that injury No.1 could be caused if person is caught from neck. He has stated that emergency service is provided round the clock at CHC Amb and CH Chintpurni.
9.17. PW17 Dr.M.K.Pathak SMO has stated that he was posted at regional hospital Una since 2004. He has stated that ::: Downloaded on - 15/04/2017 18:25:25 :::HCHP 37 on dated 16.7.2007 the then SMO Una directed him to collect .
DNA sample of Prithvi Raj and his wife Kashmiro Devi. He has stated that above named persons were identified by police officials and thereafter he got sample collected through laboratory technician under his supervision and got them properly sealed and thereafter handed over the same to police officials. He has stated that while collecting sample he had properly followed the procedure.
9.18. PW18 Kusha Dutt has stated that he remained posted as MHC Police Station Amb since February 2007. He has stated that on dated 22.6.2007 Inspector Mehar Chand SHO police station Amb deposited with him one sealed parcel containing match box, one bottle containing blood sealed with seal impression 'M', one sealed parcel containing clothes of deceased Sunil Kumar and one sealed parcel containing viscera of deceased Sunil Kumar. He has stated that on dated 23.6.2007 one sealed parcel containing clothes of co-accused Ajit Kumar sealed with seal impression 'T' and one sealed parcel of blood stained clothes of co-accused Dharam Pal were deposited with him. He has stated that on dated 26.6.2007 one sealed parcel containing knife weapon of offence sealed ::: Downloaded on - 15/04/2017 18:25:25 :::HCHP 38 with seal impression 'J' were deposited with him. He has .
stated that on dated 16.7.2007 blood sample of Prithvi Raj and Kashmiro Devi sealed with seal of mortuary Una were also deposited with him. He has stated that blood sample of parents of deceased Sunil Kumar and sealed parcel of blood stained clothes of co-accused Dharam Pal were sent for DNA test through MHC Ashwani Kumar vide RC No. 132 of 2007 on dated 17.7.2007 to CFSL Chandigarh. He has stated that HHC Ashwani Kumar on dated 17.7.2007 after depositing the same at CSFL Chandigarh handed over RC to him. He has stated that sealed parcels containing match box and bottle having blood, blood stained clothes of co-accused Ajit Kumar, one parcel containing knife, one sealed parcel containing blood stained clothes of deceased Sunil Kumar and one sealed parcel containing viscera of deceased Sunil Kumar were sent to FSL Junga vide RC No. 134 of 2007 through constable Ram Kishore. He has stated that case property remained intact in his custody. He has denied suggestion that he deposed falsely in Court. He has stated that his statement was not recorded by Investigating Officer on the day when case property was deposited with him.
::: Downloaded on - 15/04/2017 18:25:25 :::HCHP 399.19. PW19 Ashwani Kumar has stated that he .
remained posted in police station Amb for the last two years.
He has stated that on dated 17.7.2007 MHC Kusha Dutt police station Amb handed over one sealed parcel containing blood sample of parents of deceased Sunil Kumar, one blotting paper sealed with seal of mortuary Una containing an ice box and one sealed parcel containing blood stained clothes of co-
accused Dharam Pal sealed with seal 'MC' along with papers for depositing the same at CFSL Chandigarh. He has stated that he deposited the same at CFSL Chandigarh and returned RC to MHC Amb. He has stated that sealed parcels remained intact in his custody.
9.20. PW20 Sarup Lal has stated that he was posted as Motor Mechanic at police line Una since 1980. He has stated that on dated 3.7.2007 he mechanically examined maruti car No. HP-19A-4696 which was parked in the premises of police station Amb. He has stated that after checking vehicle he issued his report Ext PW20/A which bears his signature. He has stated that there was no mechanical defect in the vehicle.
He has stated that front mirror of car was broken.
::: Downloaded on - 15/04/2017 18:25:25 :::HCHP 409.21. PW21 Mehar Chand has stated that he remained .
posted as Inspector police station Amb since January 2007.
He has stated that on dated 22.6.2007 he received telephonic message from medical officer CHC Amb that one Sunil Kumar was brought dead in hospital. He has stated that on the basis of statement of medical officer CHC Amb report No.25 dated 22.6.2007 Ext PW21/A was recorded. He has stated that thereafter he along with police officials proceeded to CHC Amb and reached there at about 12.50 AM. He has stated that he took photographs of dead body of deceased Sunil Kumar Ext PW21/1 to Ext PW21/8 and negatives of photographs are Ext PW21/9 to Ext PW21/16 and filled inquest report Ext PW21/B. He has stated that he also forwarded application Ext PW12/C for conducting post mortem of deceased Sunil Kumar. He has stated that he recorded the statement of PW1 Mukal Sood Ext PW1/A as per his version and forwarded the same to police station along with his endorsement Ext PW21/C for registration of FIR. He has stated that thereafter FIR Ext PW21/D was recorded by SI Om Parkash who was working under him at that time. He has stated that he identified his signatures. He has stated that Om Parkash ::: Downloaded on - 15/04/2017 18:25:25 :::HCHP 41 made endorsement Ext PW21/E on rukka which bears his .
signatures. He has stated that on dated 22.6.2007 he proceeded to the spot and reached there at about 12 noon. He has stated that he inspected the spot and took photographs of the spot which are Ext PW21/17 to Ext PW21/25. He has stated that thereafter he took into possession blood from the pillar and chair after scratching the same and put the same into bottle and sealed with seal impression 'M' and memo Ext PW21/A was prepared. He has stated that he also prepared site plan Ext PW21/F and took into possession maruti car No. HP-19A-4696 along with documents and key vide seizure memo Ext PW1/B. He has stated that he took into possession stones, pieces of glass and one shoe which are Ext P3 to Ext P5. He has stated that bottle Ext P1 and match box Ext P2 are same. He has stated that he sent dead body of deceased Sunil Kumar for post mortem examination to District Hospita l Una and received post mortem report Ext PW12/B. He has stated that he deposited aforesaid case property with MHC police station Amb. He has stated that on dated 23.6.2007 he arrested co-accused Dharam Pal and co-
accused Ajit Kumar from Partap Nagar Amb. He has stated ::: Downloaded on - 15/04/2017 18:25:25 :::HCHP 42 that co-accused Ajit Kumar produced his clothes i.e. pant Ext .
P6 and shirt Ext P7 and same were took into possession vide seizure memo Ext PW9/A. He has stated that on the same day co-accused Dharam Pal deposited his clothes i.e. shirt Ext P8, pant Ext P9 and undergarments Ext P10 which were took into possession vide memo Ext PW10/A. He has stated that on dated 26.6.2007 co-accused Ajit Kumar made his disclosure statement under Section 27 of Evidence Act and thereafter he recovered weapon of offence and disclosure statement Ext PW10/B was recorded. He has stated that thereafter co-
accused Ajit Kumar took police officials to the disclosed place and got recovered knife Ext P11 regarding which memo Ext PW11/A was prepared. He has stated that he also prepared rough sketch of weapon Ext PW13/A. He has stated that all articles were sealed separately and memos were signed by witnesses. He has stated that he prepared site plan of the place of recovery of knife Ext PW21/G. He has stated that on dated 26.6.2007 co-accused Kewal Krishan was arrested by him. He has stated that after arrest of accused persons they were also medically examined on dated 23.6.2007. He has stated that information regarding arrest of co-accused ::: Downloaded on - 15/04/2017 18:25:25 :::HCHP 43 Dharam Pal Ext PW21/H and co-accused Ajit Kumar Ext .
PW21/J given to concerned JMIC. He has stated that car in question was mechanically examined from Sarup Chand mechanic and obtained his report Ext PW20/A. He has stated that on dated 16.7.2007 he called the parents of deceased Sunil Kumar and their blood sample for DNA test was obtained at District Hospital Una. He has stated that he moved application Ext PW21/K to SHO Una who marked the same to Dr. M.K.Pathak. He has stated that he recorded the statement of witnesses under Section 161 Cr.PC. He has stated that statement of Mukal Sood Ext PW1/A under Section 154 Cr.PC, supplementary statement Ext PW21/L under Section 161 Cr PC, statement of Ratinder Singh Ext PW21/M including portion A to A, statement of Satinder Singh Ext PW21/N including portion A to A, statement of Atul Kumar Ext PW21/O including marked portion, statement of Gurpiara Ext PW21/P including marked portion, statement of Jagdish Ext PW21/Q including marked portion and statement of Dhani Ram Ext PW21/R including marked portion were recorded by him as per their versions. He has stated that during the course of investigation one Sanjiv @ ::: Downloaded on - 15/04/2017 18:25:25 :::HCHP 44 Happy could not be arrested and proceedings under Sections .
82 and 83 Cr.PC were initiated against him. He has stated that report of FSL Ext PW21/S and Ext PW21/T were received by him. He has stated that thereafter on completion of investigation he prepared charge sheet and submitted the same in Court. He has stated that on dated 10.7.2007 he handed over the investigation of present case to K.C.Bhatia District Inspector who arrested co-accused Rukam Deen and co-accused Gurbax Singh and also recorded statement of witnesses. He has stated that site plan Ext PW21/V was prepared from JE Bharwain and he also obtained sample of seal on the piece of cloth Ext PW21/W to Ext PW21/Z. He has denied suggestion that accused persons did not give any disclosure statement. He has denied suggestion that he planted the recovery of knife against accused persons. He has admitted that as per investigation as well as per statements of injured witnesses namely Mukal Sood and Satinder it has not come on record that deceased Sunil Kumar told anybody that injury was caused by co-accused Dharam Pal or co-accused Ajit Kumar. He has denied suggestion that he conducted investigation in partial manner. He has denied suggestion that ::: Downloaded on - 15/04/2017 18:25:26 :::HCHP 45 accused persons have been falsely implicated in the present .
case.
10. Statements of accused persons recorded under Section 313 Cr.PC. Accused persons have stated that they are innocent and have been falsely implicated in the present case.
Accused persons did not lead any defence evidence.
11. Submission of learned Advocate appearing on behalf of appellants in Criminal Appeal No.13 of 2008 that there is no iota of evidence to connect appellants Dharam Pal and Ajit Kumar with the commission of offence punishable under Section 427 IPC and on this ground criminal appeal No. 13 of 2008 filed by appellants Dharam Pal and Ajit Kumar be accepted is rejected being devoid of any force for the reason hereinafter mentioned. It is well settled law that facts can be proved by way of oral evidence or by way of documentary evidence. It is well settled law that all facts except the contents of documents or electronic records can be proved by way of oral evidence as per Section 59 of the Indian Evidence Act 1872. We have carefully perused testimony of PW1 Mukal Sood eye witness of the incident. PW1 has specifically stated when he appeared in witness box that when they placed ::: Downloaded on - 15/04/2017 18:25:26 :::HCHP 46 injured in car and started leaving from the place of incident .
then co-accused Dharam Pal and co-accused Kewal Krishan and younger brother of co-accused Dharam Pal did not allow to take deceased Sunil Kumar to hospital and they broken window panes of the vehicle with the help of stones. PW1 Mukal Sood has stated in positive manner that thereafter one of the co-accused tried to drag deceased Sunil Kumar from outside the car and thereafter they again placed deceased Sunil Kumar in car and brought deceased Sunil Kumar to civil hospital Chintpurni. PW1 Mukal Sood has specifically stated that civil hospital at Chintpurni was closed and thereafter deceased was brought to civil hospital Amb and the doctor at Amb declared Sunil Kumar dead. Testimony of PW1 Mukal Sood to this effect is trustworthy, reliable and inspires confidence of Court. There is no positive evidence on record in order to prove that PW1 has hostile animus against appellants at any point of time. Similarly PW2 Satinder Kumar has specifically stated in positive manner when he appeared in witness box that when deceased Sunil Kumar was brought to car to take him to hospital then co-accused Dharam Pal, brother of Dharam Pal and co-accused Kewal Krishan started ::: Downloaded on - 15/04/2017 18:25:26 :::HCHP 47 pelting stones on the car and obstructed them. PW2 Satinder .
Kumar has specifically stated in positive manner that co-
accused Dharam Pal, his brother and co-accused Kewal Krishan also broken window panes of car. PW2 Satinder Kumar has specifically stated in positive manner that thereafter they took deceased Sunil Kumar to hospital at Chintpurni but the hospital was closed and thereafter they took deceased Sunil Kumar to hospital at Amb where Sunil Kumar was declared dead by medical officer. Testimony of PW2 Satinder Kumar is also trustworthy, reliable and inspires confidence of Court to this effect. There is no positive, reliable and cogent reason to disbelieve the testimony of PW2 Satinder Kumar to this effect. There is no positive evidence on record in order to prove that PW2 has hostile animus against appellants at any point of time. Similarly PW3 Atul has specifically stated when he appeared in witness box that as soon as they put deceased Sunil Kumar in car then co-accused Dharam Pal and other persons did not allow them to go ahead. PW3 Atul has stated in positive manner that co-accused Dharam Pal, co-accused Ajit Kumar and some other persons pelted stones on the car but ultimately they took deceased Sunil Kumar to ::: Downloaded on - 15/04/2017 18:25:26 :::HCHP 48 hospital at Chintpurni. PW3 has stated in positive manner .
that hospital at Chintpurni was closed and thereafter they brought deceased to hospital at Amb for medical treatment.
Testimony of PW3 Atul to this effect is trustworthy, reliable and inspires confidence of Court. There is no reason to disbelieve the testimony of PW3 Atul to this effect. There is no positive evidence on record that PW3 has hostile animus against appellants at any point of time. PW6 Ratinder Singh another eye witness of the incident has stated in positive manner that he brought car and thereafter PW1 Mukal Sood and PW2 Satinder Kumar brought deceased Sunil Kumar to car. PW6 Ratinder Singh has stated in positive manner that thereafter co-accused Dharam Pal, co-accused Kewal Krishan and co-accused Ajit Kumar started pelting stones on car. PW6 Ratinder Singh has specifically stated in positive manner that they put deceased Sunil Kumar in car with great struggle and thereafter they took deceased Sunil Kumar to hospital at Chintpurni but the hospital was closed and thereafter they brought deceased Sunil Kumar to hospital at Amb where he was declared dead by medical officer. Testimony of PW6 Ratinder Singh eye witness is also trustworthy, reliable and ::: Downloaded on - 15/04/2017 18:25:26 :::HCHP 49 inspires confidence of Court. There is no reason to disbelieve .
the testimony of PW6 Ratinder Singh to this effect. There is no positive evidence on record in order to prove that PW6 has any hostile animus against appellants at any point of time. It is held that it is proved beyond reasonable doubt as per oral testimony of PW1 Mukal Sood, PW2 Satinder Kumar, PW3 Atul and PW6 Ratinder Singh that both appellants namely Dharam pal and Ajit Kumar in furtherance of common intention intentionally committed mischief by causing loss and damage to maruti car bearing registration No.HP-19A-
4696 belonging to Jeewan Singh.
12. Another submission of learned Advocate appearing on behalf of appellants in criminal Appeal No. 13 of 2008 that learned trial Court had acquitted accused persons qua criminal offence punishable under Sections 302, 323 and 324 IPC and on this ground appellants Dharam Pal and Ajit Kumar be also acquitted qua criminal offence under Section 427 IPC is also rejected being devoid of any force for the reason hereinafter mentioned. It is well settled law that criminal offence punishable under Section 427 IPC and criminal offence punishable under Sections 302, 323 and 324 ::: Downloaded on - 15/04/2017 18:25:26 :::HCHP 50 IPC are independent criminal offence. It is well settled law that .
Court can convict accused person strictly as per proved facts relating to particular criminal offence. It is well settled law that concept falsus in uno falsus in omnibus is not applicable in criminal trials. See AIR 1980 SC 957 titled Bhe Ram Vs. State of Haryana. Also See AIR 1971 SC 2505 titled Rai Singh Vs. State of Haryana. Even as per section 222(2) of code of criminal procedure 1973 if a person is charged of major offence then he could be convicted for minor criminal offence if minor criminal offence is proved. See AIR 2000 SC 297 titled State of HP Vs. Tara Dutt. See 1997 (4) Supreme 214 titled Sangharabonia Sreenu Vs. State of A.P
13. Another submission of learned Advocate appearing on behalf of appellants in Criminal Appeal No. 13 of 2008 that PW1 Mukal Sood, PW2 Satinder Kumar and PW3 Atul have been declared as hostile witness by prosecution and on this ground appeal filed by appellants Dharam Pal and Ajit Kumar be accepted is also rejected being devoid of any force for the reason hereinafter mentioned. It was held in case reported in 2011 (6) SCC 312 titled Yomeshbhai Pranshankar ::: Downloaded on - 15/04/2017 18:25:26 :::HCHP 51 Bhatt Vs. State of Gujarat that evidence of hostile witness .
may contain elements of truth and should not be entirely discarded. Also see AIR 1991 SC 1853 titled Khujji @ Surendra Tiwari Vs. State of Madhya Pradesh, See 2012 (4) SCC 327 titled Bhajju @ Karan Singh Vs. State of Madhya Pradesh, Also see 2012 (5) SCC 777 titled Ramesh Harijan Vs. State of Uttar Pradesh, See AIR 1976 SC 202 titled Bhagwan Singh Vs. State of Haryana and Also See AIR 1977 SC 170 titled Ravindra Kumar Vs. State of Orissa. Also see AIR 1979 SC 1848 titled Syad Akbar Vs. State of Karnataka. Also see AIR 1971 SC 1853 titled Surendra Tiwari Vs. State of MP.
14. Another submission of learned Advocate appearing on behalf of appellants in Criminal Appeal No. 13 of 2008 that material question was not put to appellants Dharam Pal and Ajit Kumar under Section 313 Cr.PC relating to criminal offence under Section 427 IPC and on this ground appeal filed by appellants be accepted is also rejected being devoid of any force for the reason hereinafter mentioned. We have carefully perused the statement of accused persons recorded under Section 313 Cr PC. It is held that learned trial Court had put material questions to co-accused Dharam Pal ::: Downloaded on - 15/04/2017 18:25:26 :::HCHP 52 and co-accused Ajit Kumar relating to criminal offence under .
Section 427 IPC when statements of co-accused Dharam Pal and co-accused Ajit Kumar were recorded under Section 313 Cr.PC. It is held that no miscarriage of justice has been caused to co-accused Dharam Pal and co-accused Ajit Kumar by way of not putting material questions to appellants under Section 313 Cr PC. It is held that all incriminating questions were put to accused persons under Section 313 Cr.PC relating to criminal offence under Section 427 IPC.
15. Another submission of learned Advocate appearing on behalf of appellants in Criminal Appeal No.13 of 2008 that all prosecution witnesses are interested witnesses and on this ground conviction of co-appellant Dharam Pal and co-appellant Ajit Kumar under Section 427 IPC be set aside is also rejected being devoid of any force for the reason hereinafter mentioned. There is no evidence on record that prosecution witnesses have hostile animus against accused persons at any point of time. It was held in case reported in AIR 1981 SC 1390 titled State of Rajasthan Vs. Kalki and another that relative witness is not equivalent to interested ::: Downloaded on - 15/04/2017 18:25:26 :::HCHP 53 witness. It was held that conviction in criminal case can be .
given on the testimony of relative witness if testimony of relative witness is trustworthy. It was held that there is difference between relative witness and interested witness.
16. Another submission of learned Advocate appearing on behalf of appellants in Criminal Appeal No 13 of 2008 that there is improvement in the testimony of PW1 Mukal Sood and PW7 Dhani Ram and on this ground appeal filed by appellants be accepted is also rejected being devoid of any force for the reason hereinafter mentioned. We have carefully perused testimonies of PW1 Mukal Sood and PW7 Dhani Ram. There is no material improvement in the testimonies of PW1 and PW7 which goes to the root of case. It is well settled law that minor contradictions are bound to come in criminal case when testimony of prosecution witnesses is recorded after a gap of sufficient time. In the present case incident took place on dated 21.6.2007 at about 11.30 pm at village Badhmana Tehsil Amb District Una HP and statements of prosecution witnesses were recorded on dated 11.12.2007, 12.12.2007, 13.12.2007 and 14.12.2007.
Hence it is held that material improvements in the testimony ::: Downloaded on - 15/04/2017 18:25:26 :::HCHP 54 of prosecution witnesses are not proved on record in the .
present case. It was held in case reported in 2015 (3) SC 1 titled Pawan Kumar Vs. State of UP that minor discrepancies in criminal case should be ignored.
17. Submission of learned Additional Advocate General appearing on behalf of State in Criminal Appeal No. 272 of 2008 that learned trial Court had wrongly acquitted accused persons under Sections 302, 323 and 324 IPC is rejected being devoid of any force for the reason hereinafter mentioned. PW1 Mukal Sood eye witness of the incident has specifically stated when he appeared in witness box that he did not see anybody causing injury to deceased Sunil Kumar.
Similarly PW2 Satinder Kumar has stated in positive manner when he appeared in witness box that he does not know who caused injury to deceased Sunil Kumar. PW3 Atul another eye witness of the incident has specifically stated in positive manner that he does not know who had caused injury to deceased Sunil Kumar. Similarly PW6 Ratinder Kumar eye witness has also stated in positive manner that he did not see anybody inflicting injury upon deceased Sunil Kumar. None of the witness has stated in positive manner that which of the ::: Downloaded on - 15/04/2017 18:25:26 :::HCHP 55 accused had caused injury upon deceased Sunil Kumar with .
knife. It was held in case reported in 2005 (9) SCC 765 titled Anjlus Dungdung Vs. State of Jharkhand that suspicion however strong cannot take place of proof. It was held in case reported in 2010 (11) SCC 423 titled Nanhar Vs. State of Haryana that prosecution must stand or fall on its own leg and it cannot derive any strength from the weakness of the defence. It was held in case reported in AIR 1979 SC 1382 titled State (Delhi Administration) Vs. Gulzarilal Tandon that moral conviction however strong or genuine cannot amount to legal conviction sustainable in law. Also See: AIR 1984 SC 1622 titled Sharad Birdhichand Sarda Vs. State of Maharashtra, See AIR 1983 SC 906 titled Bhugdomal Gangaram and others Vs. State of Gujarat, See AIR 1985 SC 1224 titled State of UP Vs. Sukhbasi and others.
18. Another submission of learned Additional Advocate General appearing on behalf of State in Criminal Appeal No. 272 of 2008 that presence of co-accused Dharam Pal at the place of incident is proved on record and on this ground co-accused Dharam Pal be convicted under Section 302, 323 and 324 IPC is also rejected being devoid of any force ::: Downloaded on - 15/04/2017 18:25:26 :::HCHP 56 for the reason hereinafter mentioned. We are of the opinion .
that simply presence of co-accused Dharam Pal at the place of incident is not sufficient to hold that co-accused Dharam Pal had inflicted injury upon deceased Sunil Kumar with sharp edged weapon. There is no positive, cogent and reliable evidence on record in order to prove that co-accused Dharam Pal had inflicted injury upon deceased Sunil Kumar with sharp edged weapon.
19. Another submission of learned Additional Advocate General appearing on behalf of State in Criminal Appeal No. 272 of 2008 that as per testimony of prosecution witnesses connectivity of accused persons with the commission of offence punishable under Sections 302, 323 and 324 IPC is proved beyond reasonable doubt is also rejected being devoid of any force for the reason hereinafter mentioned. We have carefully perused the testimony of entire prosecution witnesses. It is held that fact of connectivity of accused persons is not proved on record qua commission of offence punishable under Sections 302, 323 and 324 IPC.
There is no positive, cogent and reliable evidence on record in order to prove that accused persons have intentionally and ::: Downloaded on - 15/04/2017 18:25:26 :::HCHP 57 voluntarily caused murder of deceased Sunil Kumar. There is .
no positive, cogent and reliable eye witness on record in order to prove that accused persons have voluntarily caused hurt to deceased Sunil Kumar with dangerous weapon. PW1 Mukal Sood, PW2 Satinder Kumar, PW3 Atul and PW6 Ratinder Singh eye witness of the incident did not support prosecution case relating to criminal offence punishable under Sections 302, 323 and 324 IPC. PW1, PW2, PW3 and PW6 have not stated in positive manner that accused persons in their presence have caused murder of deceased Sunil Kumar and they have also not stated that accused persons have voluntarily caused hurt with sharp edged weapon to deceased Sunil Kumar in their presence. On the contrary PW1 Mukal Sood, PW2 Satinder Kumar, PW3 Atul and PW6 Ratinder Singh have stated in positive manner that accused persons did not inflict injury upon the body of deceased Sunil Kumar in their presence. Even as per testimony of PW12 Dr.S.K.Bansal who conducted post mortem of deceased injuries on the person of deceased are not possible with knife Ext P11. Even prosecution did not prove the fact that knife ::: Downloaded on - 15/04/2017 18:25:26 :::HCHP 58 Ext P11 was used in the commission of murder of deceased as .
per testimony of PW12.
20. Another submission of learned Additional Advocate General appearing on behalf of State in Criminal Appeal No. 272 of 2008 that as per disclosure statement given by co-accused Ajit Kumar accused persons be convicted under Sections 302, 323 and 324 IPC is also rejected being devoid of any force for the reason hereinafter mentioned. It is well settled law that disclosure statement is not a substantive evidence to convict accused persons but it is only corroborative evidence. It was held in case reported in AIR 1979 SC 1042 titled Babbo and others Vs. State of Madhya Pradesh that in the absence of substantive evidence recovery has no probative value.
21. Submission of learned Advocate appearing on behalf of revisionist Prithvi Raj in Criminal Revision No. 57 of 2008 that it is proved on record that accused persons have given blows on the chest of deceased Sunil Kumar as a result of which blood started oozing out and blood fell on the ground as well as on the pillar of the house where incident took place and blood of deceased Sunil Kumar was also found in the car ::: Downloaded on - 15/04/2017 18:25:26 :::HCHP 59 when deceased was taken for medical treatment and on this .
ground revision petition be accepted is rejected being devoid of any force for the reason hereinafter mentioned. We have carefully perused the testimony of entire prosecution witnesses. PW1 Mukal Sood, PW2 Satinder Kumar, PW3 Atul and PW6 Ratinder Singh who are alleged eye witnesses of the incident have specifically stated in positive manner that they did not see the fact that accused persons have inflicted injuries upon the chest of deceased Sunil Kumar with sharp edged weapon. None of the prosecution witnesses have stated that accused persons have inflicted injuries upon deceased Sunil Kumar with sharp edged weapon in their presence. It is well settled law that criminal offence should be proved beyond reasonable doubt. Eye witnesses of the incident did not support the prosecution case qua inflicting injury upon the body of deceased Sunil Kumar with sharp edged weapon.
22. Another submission of learned Advocate appearing on behalf of revisionist in Criminal Revision No. 57 of 2008 that blood was found on the pillar of house, on the legs of chairs and on the car and on this ground accused ::: Downloaded on - 15/04/2017 18:25:26 :::HCHP 60 persons be convicted is also rejected being devoid of any force .
for the reason hereinafter mentioned. There is no positive evidence on record in order to prove that which of the accused had inflicted injuries upon the body of deceased Sunil Kumar.
As per chemical analyst report Ext PW21/T placed on record although human blood was found on dry blood scrapped from chair but same was found inconclusive for grouping. Similarly human blood was found on pant of Ajit Kumar but blood was insufficient for blood grouping. We are of the opinion that in the absence of proof of blood grouping it is not expedient in the ends of justice to convict accused persons under Sections 302, 323, 324 and 201 IPC.
23. Another submission of learned Advocate appearing on behalf of revisionist in Criminal Revision No. 57 of 2008 that deceased Sunil Kumar had sustained injury at the bride house and thereafter deceased Sunil Kumar died due to impact of injuries and on this ground accused persons be convicted is also rejected being devoid of any force for the reason hereinafter mentioned. We are of the opinion that there is no evidence on record in order to prove that which of the ::: Downloaded on - 15/04/2017 18:25:26 :::HCHP 61 accused had inflicted injury upon deceased Sunil Kumar. All .
prosecution eye witnesses have stated in positive manner that injuries were not inflicted upon deceased Sunil Kumar in their presence by accused persons. In the absence of proof of role of each accused persons relating to inflicting of injuries upon person of deceased it is not expedient in the ends of justice to connect accused persons under Sections 302, 323, 324 and 201 IPC. It is well settled law that prosecution is under legal obligation to prove its case against accused persons beyond reasonable doubt. It is well settled law that accused is presumed to be innocent till proven guilty in accordance with law.
24. Another submission of learned Advocate appearing on behalf of revisionist in Criminal Revision No. 57 of 2008 that learned trial Court had failed to appreciate the fact that young life of deceased Sunil Kumar was taken away by criminals and accused persons should not be allowed to go scot free on minor variations in the statements of prosecution witnesses is also rejected being devoid of any force for the reason hereinafter mentioned. We have carefully perused the testimony of entire prosecution oral as well as documentary ::: Downloaded on - 15/04/2017 18:25:26 :::HCHP 62 evidence. There is no positive, reliable and cogent evidence on .
record to prove that which of accused had inflicted injury upon deceased Sunil Kumar with sharp edged weapon.
Although it is proved on record that deceased Sunil Kumar had sustained injuries and it is also proved on record that thereafter deceased Sunil Kumar died but it is not proved on record that which of the accused had inflicted injuries upon deceased Sunil Kumar with sharp edged weapon.
25. In view of above stated facts Criminal Appeal No. 13 of 2008 titled Dharam Pal and another Vs. State of HP, Criminal Appeal No. 272 of 2008 titled State of HP Vs. Dharam Pal and Criminal Revision No. 57 of 2008 titled Prithvi Raj Vs. Dharam Pal and others are dismissed.
Judgment and sentence passed by learned trial Court are affirmed. It is held that learned trial Court had properly appreciated oral as well as documentary evidence placed on record in the present case. Criminal Appeal No. 13 of 2008, Criminal Appeal No. 272 of 2008 and Criminal Revision No. 57 of 2008 are disposed of. Certified copy of judgment be placed in each consolidated appeal file. Pending application if any ::: Downloaded on - 15/04/2017 18:25:26 :::HCHP 63 also disposed of. Records of learned trial Court along with .
certified copy of judgment be sent back forthwith.
(Rajiv Sharma), Judge.
(P.S.Rana), Judge.
June 22 ,2015(R) ::: Downloaded on - 15/04/2017 18:25:26 :::HCHP 64 .
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