Himachal Pradesh High Court
Ruchi Kant And Others vs State Of Himachal Pradesh on 15 June, 2015
Author: Rajiv Sharma
Bench: Rajiv Sharma, Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No. 4199 of 2013 a/w
Criminal Appeal No. 37 of 2014
Reserved on: 04.06.2015
.
Date of decision: 15.6. 2015
Cr. Appeal No. 4199 of 2013
Ruchi Kant and others
......Appellants.
Vs.
State of Himachal Pradesh
.....Respondent.
Criminal Appeal No. 37 of 2014
Smt. Sukhdei
r ......Appellant.
Vs.
Smt. Raj Kumari and others
.....Respondents.
-------------------------------------------------------------------------------------------
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge
The Hon'ble Mr. Justice Sureshwar Thakur, Judge
Whether approved for reporting?1 Yes
For the appellants : Mr. Satyen Vaidya, Advocate, for the
appellants in Cr. Appeal No. 4199 of
2013.
Mr. Ajay Thakur, Advocate, vice Mr.
Lakshay Thakur, Advocate, for the
appellant in Cr. Appeal No. 37 of 2014.
For the respondent(s): Mr. Ramesh Thakur, Assistant Advocate
General, for the respondent-State in both
the appeals.
None for respondents No. 1 and 2 in
Criminal Appeal No. 37 of 2014.
Whether the reporters of the local papers may be allowed to see the Judgment? Yes
::: Downloaded on - 15/04/2017 18:21:59 :::HCHP
2
Rajiv Sharma, J.:
.
Since both the appeals have arisen out of the common judgment, dated 24.08.2013/26.08.2013, the same were taken up together for hearing and are being disposed of by this common judgment.
2. These appeals are instituted against the judgment dated 24.08.2013/26.08.2013, rendered by the learned Special Judge, Hamirpur, H.P. in Sessions Trial No. 24 of 2012, whereby the appellants in Cr. Appeal No. 4199 of 2013 alongwith Raj Kumari and Asha Devi were charged with and tried for the offence punishable under Sections 364, 302, 201 read with Section 34 of the Indian Penal Code and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Accused Raj Kumari and Asha Devi were acquitted, however, accused Ruchi Kant, Subhash Chand and Anil Kumar were convicted and sentenced to imprisonment for life and a fine of `20,000/- each was also imposed for the offence punishable under Section 302 of the Indian Penal Code and in default of payment of fine, they were further ordered to undergo simple imprisonment for one year.
They were also sentenced to undergo rigorous imprisonment for 7 years and a fine of `10,000/- each was also imposed for the offence punishable under Section 364 of the Indian Penal Code and in default of payment of fine, they were further ordered to undergo simple imprisonment for six months. They were also sentenced to undergo ::: Downloaded on - 15/04/2017 18:21:59 :::HCHP 3 rigorous imprisonment for five years and to pay fine of `5,000/- each for the offence punishable under Section 201 of the Indian Penal Code and in default of payment of fine, they were further ordered to undergo .
simple imprisonment for three months. They were also sentenced to undergo imprisonment for life and to pay a fine of `10,000/- each for the offence punishable under Section 3(2)(v) of the SC & ST Act and in default of payment of fine, they were further ordered to undergo simple imprisonment for six months.
3. Case of the prosecution, in a nut-shell, is that on 11.08.2011, complainant Smt. Sukhdei (PW-1), wife of Shri Ramesh Chand, resident of Village and Post Office, Badoh, Tehsil and Police Station, Bhoranj, telephonically informed the police at Police Station, Bhoranj that accused Ruchi Kant, Anil Kumar, Subhash Chand, Raj Kumari and Asha Devi have kidnapped her husband after giving beatings to him. On this information, rapat Ex. PW38/A was entered in the Police Station and SI Desh Raj (PW 38) went to the spot where complainant Smt. Sukhdei (PW-1) got recorded her statement under Section 154 Cr. P.C. Ex. PW1/A. FIR Ex. PW37/A was registered.
During investigation, every effort was made to locate Ramesh Chand, but he could not be located either alive or dead due to rainy season and growing of crop. Thereafter, Dy. SP Headquarters searched at the spot and on his supervision separate teams were constituted to trace Ramesh Chand. On the next day in the morning, slippers of the husband of complainant were located at a distance of 40-50 feet away ::: Downloaded on - 15/04/2017 18:21:59 :::HCHP 4 from the house of accused and the complainant (PW-1) identified those slippers. The investigating officer (PW-38) took into possession those slippers Ex. P1. He also clicked the photograph Mark-C and lifted the .
samples of blood from the spot with the help of cotton in a match-box and sealed it in a cloth parcel and took the same into possession vide memo Ex. PW8/A. On April, 2011, deceased Ramesh Chand purchased 15 Marlas land from one Roshan Lal, which was situated adjacent to the house of deceased Ramesh Chand and the boundary of land of accused was also adjoining to this land. Accused wanted to purchase the said land and due to that reason accused developed some enmity with the complainant party. The accused persons had quarreled and beaten the complainant (PW-1) and her son Purshotam (PW-18) and FIR No. 66, dated 16.04.2011 Ex. PW41/A under Sections 341, 323, 325 &506 read with Section 34 of the Indian Penal Code regarding this incident was registered at Police Station Bhoranj. On 11.08.2011, deceased Ramesh Chand had gone to his routine work to Jahu in the morning and come back for taking his lunch and thereafter, he again left for his shop at about 2:30/3:00 p.m. When at about 7:30 p.m., deceased Ramesh Chand did not return from the shop as usual, complainant came out to her courtyard and waited for him. In the meantime, she heard the cries of her husband from the side of house of accused Subhash Chand. At about 7:45 p.m., when Miss Baby (PW-5) was cooking meal in her kitchen, she heard the sound of gate of house of accused Subhash Chand and then she peeped through window of her ::: Downloaded on - 15/04/2017 18:21:59 :::HCHP 5 house and saw that the accused persons were beating Ramesh Chand with kicks and blows. When Baby (PW-5) was peeping through the window, accused Subhash Chand and Anil Kumar had seen her and .
thereafter they started taking Ramesh Chand towards verandah.
Thereafter, Baby (PW-5) went to her cousin sister Pushpa Devi (PW-3) and narrated about the incident, on which she also came out and saw giving beating to Ramesh Chand by the accused persons. Pushpa Devi (PW-3) tried to make a call to Dina Nath, but the call could not be matured and then she made a call on landline phone to Rekha Devi (PW-2) at about 8:00 p.m. and informed her that the accused persons were beating Ramesh Chand and on this, PW-2 went to the house of complainant and told about this incident to her. Thereafter, Baby (PW-
5) and Pushpa Devi (PW-3) came to the courtyard of PW-5 and saw that Ramesh Chand was being taken by accused Subhash Chand, Ruchi Kant and Anil Kumar towards Khad, while accused Raj Kumari and Asha Devi were following them at some distance. On seeing this, Pushpa Devi (PW-3) asked the accused persons as to why they had beaten up Ramesh Chand. When complainant (PW-1) was still in the courtyard, at the same moment Rekha Devi (PW-2) came to her house and disclosed that accused persons were giving beating to Ramesh Chand. Complainant Sukhdei started weeping loudly and called Dina Nath and thereafter Dina Nath, Braham Dass, Gian Chand, Santosh Kumari, Pushpa Devi & Rekha Devi came to her house and then went towards the house of accused. When they reached in the house of ::: Downloaded on - 15/04/2017 18:21:59 :::HCHP 6 accused, neither Ramesh Chand nor accused were present there and some blood stains were present on the gate, wall and courtyard of the house of accused Subhash Chand as well as on the path leading .
towards the Khad (rivulet). Accused were arrested. Accused Anil Kumar made disclosure statement Ex. PW9/A. Thereafter body parts of deceased Ramesh Chand were recovered. The recovery of drat was also effected. The investigation was completed and the challan was put up in the Court after completing all the codal formalities.
4. The prosecution has examined number of witnesses to support its case. The accused were also examined under Section 313 of the Cr. P.C. They pleaded innocence. The appellants/accused in Cr.
Appeal No. 4199 of 2013 were convicted and sentenced, as stated hereinabove. Hence, these appeals.
5. Smt. Sukhdei, complainant has also filed an appeal bearing Cr. Appeal No. 37 of 2014 against the acquittal of Raj Kumari and Asha Devi.
6. Mr. Satyen Vaidya, learned counsel for the appellants in Cr. Appeal No. 4199 of 2013 has vehemently argued that the prosecution has failed to prove the case against the accused persons.
7. Mr. Ramesh Thakur, learned Assistant Advocate General, has supported the judgment, dated 24.08.2013/26.08.2013.
8. We have heard the learned counsel for the parties and gone through the judgment and records, carefully.
::: Downloaded on - 15/04/2017 18:21:59 :::HCHP 79. PW-1, Smt. Sukhdei, deposed that her husband was working as a Carpenter at Jahu. On 11.08.2011, he had gone for his routine work to Jahu in the morning and came back to house for taking .
lunch and thereafter, he again left for the shop at about 2:30/3:00 p.m. When at about 7:30 p.m., he did not return from the shop, she came out to her courtyard and waited for his arrival. In the meantime, she heard cries of her husband coming from the side of house of accused Subhash. She was in the courtyard, in the meantime, Rekha Devi, wife of Prem Chand came to her house and she told her that the family of Subhash Chand was beating her husband Ramesh Chand. She started weeping loudly and called Dina Nath. Thereafter, Dina Nath, Braham Dass, Gian Chand, Santosh Kumari, Pushpa Devi, Rekha Devi all came to her house and then they went towards the house of Subhash Chand.
Some blood stains were found on the gate and wall of the house as well as in the courtyard of the accused. There were blood stains on the passage leading towards the Khad/Jahu. Pushpa Devi and Baby, who were already present there, disclosed them that accused Ruchikant, Anil Kumar, Subhash Chand, Raj Kumari and Asha Devi had beaten up Ramesh Chand and taken him towards Khad. She telephonically informed the police. Police arrived on the spot after some time. Police inquired from her and recorded her statement Ex. PW1/A. Police clicked the photographs of the blood lying on the spot and also took the blood into possession. The police as well as villagers searched for her husband, but he could not be traced. On the next day in the morning, ::: Downloaded on - 15/04/2017 18:22:00 :::HCHP 8 the sleepers of her husband were located at a distance of 40-50 feet away from the house of accused. She identified the sleepers of her husband. Police took into possession that sleepers after taking .
photographs of the same vide memo Ex. PW1/8. They had purchased 15 Marlas of land from one Roshan Lal in the month of April, 2011, which was quite adjacent to their house and the boundary of the land of the accused persons adjoins to that land and accused persons wanted to purchase that land and due to that reason, they had developed some enmity with them. According to her, the accused persons had quarreled and beaten up her and her son due to enmity after the purchase of land and the case regarding this beating was registered against the accused. In her cross-examination, she deposed that distance of her house from the house of Subhash was about 250- 300 metres by road, but through fields it was lesser. The house of Rekha was situated after 2-3 houses of her house. The house of Baby was not on back side of the house of Subhash. However, between both these two houses, there was a passage. She has admitted that Rekha was the daughter of maternal uncle of Baby. She also admitted that Pushpa and Baby were first cousins. Purshotam was her son. She could not say after how much time of reaching Rekha to her house, she went to the house of Subhash. She could not tell that she visited there after half an hour or one hour. Baby and Pushpa were in their courtyard and when they reached the house of Subhash, Baby, Pushpa and their family members had also reached there. She did not remember whether ::: Downloaded on - 15/04/2017 18:22:00 :::HCHP 9 she had told the police that Santosh Kumari and Pushpa Devi had also come to her house alongwith Dina Nath etc. (she was confronted with her statement Ex.PW1/A, where names of these ladies were not stated).
.
She had told the police that when they reached the house of accused Subhash, he and his family members were not present (she was confronted with her statement Ex. PW1/A, in which it was not stated).
She had also told the police that Pushpa Devi and Baby were already present there who had told her that the accused had beaten her husband and taken him towards Khad (she was confronted with her statement Ex. PW1/A in which, no such fact was recorded). However, according to her, this fact was stated by her in her supplementary statement. She had not told the police that Subhash Chand wanted to purchase 15 Marlas of land. She had told the police that accused Ruchikant and Anil Kumar had threatened to kill her entire family whenever they got an opportunity (she was confronted with her statement Ex. PW1/A where this fact is not so recorded).
10. PW-2, Smt. Rekha Devi deposed that on 11.08.2011, she went to her kitchen. In the meantime, she received a telephone call on her landline from Pushpa Devi and she disclosed her that accused persons, namely, Subhash Chand, Ruchikant, Anil Kumar, Raj Kumari and Asha Devi were beating Ramesh Chand. She went to the house of Ramesh Chand, where wife of Ramesh Chand was present in the courtyard. She told her that she got a telephone call from Pushpa Devi, who disclosed that the accused persons were beating Ramesh Chand.
::: Downloaded on - 15/04/2017 18:22:00 :::HCHP 10On this, PW-1, Smt. Sukhdei started weeping loudly and on hearing her cries, one Dina Nath, Braham Dass, Gian Chand and two three other ladies of the locality gathered there. Thereafter, they all went to the .
house of accused Subhash Chand, where they saw blood stains on the wall of the house of accused, gate and in the courtyard. Thereafter, they went to the house of Pushpa and Baby, who informed them that the accused persons after giving beatings to Ramesh Chand, took him towards downward Khad. There was none in the house of the accused except one person having beard sitting in the verandah. PW-1 informed the police telephonically and they all searched for Ramesh Chand in the fields but could not trace him. Thereafter, police came to the spot and recorded the statement of PW-1. Police took into possession the sample of blood from the spot. The accused persons had beaten Ramesh Chand due to some previous enmity regarding purchase of land and earlier also the accused persons had beaten up the family members of deceased Ramesh Chand. During search, police recovered sleepers Ex.
P1 from the spot at a distance of 40-50 feet away from the house of accused. In her cross-examination, she admitted that Baby was her cousin being the daughter of sister of her father. She also admitted that their house was situated at higher level, whereas house of accused was at lower level. She did not know at what time, she reached the house of Sukhdei. She stated that it might have taken 20-25 minutes to reach them to the house of accused from the house of Sukhdei. She also admitted that as long as she remained in the house of Subhash, ::: Downloaded on - 15/04/2017 18:22:00 :::HCHP 11 Pushpa and Baby did not come there. She also admitted that sometimes, Subhash Chand and his family members throw wastes of their house in their land despite their protest a number of times and .
because of this, there had been altercations between them. She had told the police that Pushpa Devi disclosed her on phone that accused Subhash Chand, Ruchikant, Anil Kumar, Raj Kumari and Asha Devi were beating Ramesh Chand (she was confronted with her statement Mark-DA, where the names of family members of accused Subhash Chand were not recorded). She had also told the police that they all went to the house of accused Pushpa and Baby, who informed them that accused persons after beating Ramesh Chand, took him towards Khad (she was confronted with statement Mark-DA, where it is not so recorded). They had gone towards the Khad to search for Ramesh Chand. Other persons were also with them. By that time, police had not reached the spot. At that time, Sukhdei was also with them, when they had gone towards Khad to search Ramesh Chand. They had not searched the deceased Ramesh Chand on the next day of the occurrence.
11. PW-3, Smt. Pushpa Devi deposed that on 11.08.2011 at about 7:45 p.m., she was cooking food in her kitchen. In the meantime, her cousin sister Baby came to her and told that Subhash Chand and his family members were beating Ramesh Chand. On this, she came out of her kitchen and saw that Ramesh Chand was crying and requesting for his rescue in the gate of the house of accused Subhash ::: Downloaded on - 15/04/2017 18:22:00 :::HCHP 12 Chand. All the accused persons namely Subhash Chand, Ruchikant, Anil Kumar, Raj Kumari and Asha Devi were giving beatings to Ramesh Chand. She tried to make a telephone call at the house of Ramesh .
Chand, but the call did not mature. On this, she told about the incident to Smt. Rekha Devi on her landline telephone. Thereafter, she and Baby went to the house of accused persons, where Ramesh Chand was lifted by the accused Subhash Cnand, Ruchikant and Anil and went towards Khad side. Accused Raj Kumari and Asha Devi also followed them. She asked accused Raj Kumari as to why she had beaten up Ramesh Chand. After 10-15 minutes, wife of Ramesh Chand alongwith other persons reached on the spot. They all searched for Ramesh Chand, but he could not be traced. In her cross-examination, she deposed that Rekha Devi is not related to her. House of Baby was at a lower level from the house of Subhash and in between the house of Subhash and Baby, there was a mango tree. She did not go to the house of Rekha Devi. She also did not go to the house of Subhash Chand, but she had made a call to Rekha Devi. She also deposed that earlier, she tried to inform Sukhdei, but call to her could not mature. The fact that she and Baby went to the house of accused persons and saw that Ramesh Chand was lifted by the accused Subhash Chand, Ruchikant and Anil, who took him towards Khad, was told by her to the police (she was confronted with statement Mark-DB, where it is not so recorded). She had told the police that her cousin Baby came to her and told that Subhash Chand and his family members were beating Ramesh Chand ::: Downloaded on - 15/04/2017 18:22:00 :::HCHP 13 (she was confronted with her statement Mark-DB, in which names of only three accused Subhash Chand, Anil and Ruchikant are mentioned). She talked to Rekha on telephone about 15 minutes and .
thereafter, she came to the house of Baby. She did not remember for how long she remained in the house of Baby, but she remained there for quite long. Thereafter, she came back to her house and stayed at her house during the night. She had not gone to the Khad to search Ramesh Chand alongwith other persons. She could not remember the colour of the clothes worn by Ramesh Chand.
12. PW-4, Nazeer Deen, has deposed that on 10.08.2011, he had gone to the house of accused Subhash Chand. He took dinner and went to sleep in the night. On the next day, Subhash Chand and his family members had to go to appear before the Panchayat. They proposed him to accompany them. At 7:00 p.m., they came to the house of Subhash Chand. They sat in the upper storey verandah of the house of Subhash Chand. In the meantime, he heard some cries from the passage which was leading along the house of accused. He could not identify the persons who were crying. After some time, police arrived there. Some villagers had also reached on the spot. He heard some noise when he was in the bath room. Thereafter, nothing has happened.
He was declared hostile and was cross-examined by the learned Public Prosecutor. He admitted that when the person was going along the passage leading in front of the house of accused, Subhash Chand said to him why he usually abused him while passing through the passage.
::: Downloaded on - 15/04/2017 18:22:00 :::HCHP 14He denied the suggestion that thereafter accused Ruchikant and Anil Kumar chased him. He also denied that when the said person tried to stand, accused Anil Kumar kicked him and gave blows to him. He also .
denied that thereafter Ruchikant and Anil Kumar lifted that person and took him to passage leading downward. He admitted that his statement was recorded before the Judicial Magistrate 1st Class, Court No. II, Hamirpur. He admitted his signatures on Ex. PW4/B. He admitted that whatever he deposed that was recorded by the Magistrate in his statement Ex.PW4/C, volunteered that when he was brought to the Court, police had asked him to make the statement in the manner which was recorded by the police, otherwise he may be in trouble. He admitted that after writing his statement Ex. PW4/C, the same was read over to him by the Magistrate and he signed each page as correct.
In his cross-examination, by the learned defence counsel, he admitted that till the arrival of police, entire family of the accused was inside the house. He also admitted that from 13.08.2011 onwards, police kept on asking him to make the statement according to their wish.
13. PW-5, Ms. Baby deposed that on 11.08.2011 at about 7:45 p.m, she was cooking meals in her kitchen. In the meantime, she heard the sound of gate of Subhash Chand. She peeped through window of her house and saw that Ramesh Chand was being beaten up by accused persons, namely, Subhash Chand, Ruchikant and Anil Kumar.
Accused Raj Kumari and her daughter in law Asha Devi were also standing there. They were beating Ramesh Chand by giving kick and ::: Downloaded on - 15/04/2017 18:22:00 :::HCHP 15 fist blows. When she was peeping through the window, Subhash Chand and Anil Kumar saw her looking towards them. Thereafter, they started taking Ramesh Chand towards verandah. She went to her cousin sister .
Pushpa Devi and narrated about the beating being given to Ramesh Chand by the accused persons, on which she also came out and saw the beatings being given by accused persons. Pushpa Devi tried to make phone call to Dina Nath, resident of Badoh, but the call could not mature. Then, Pushpa Devi made a telephone call on the landline phone of Rekha Devi and informed her regarding the beatings.
Thereafter, she and Pushpa Devi came to her courtyard and saw that Ramesh Chand was being taken away by accused Subhash Chand, Ruchikant and Anil Kumar towards Khad while accused Asha Devi and Raj Kumari were following them at some distance. After 15-20 minutes, Sukhdei alongwith other villagers came there. Sukhdei was crying. All the villagers searched for Ramesh Chand, but he could not be traced. In her cross-examination, she told the police that when the accused were beating Ramesh Chand, accused Asha Devi was also there (she was confronted with statement Mark-DC, in which name of accused Asha Devi was not stated). She also deposed that she had not told the police that Pusshpa Devi tried to call Dina Nath. She has admitted that their house was at a lower level as compared to the house of accused Subhash Chand. She has narrated the incident to her father, volunteered that after hearing the incident, his BP arose and after taking medicine, he went to sleep.
::: Downloaded on - 15/04/2017 18:22:00 :::HCHP 1614. PW-6, Sh. Surjit Kumar is not a material witness. PW-7, Sh. Ishwar Dass, deposed that on 12.08.2011, during investigation, police recovered black colour Chappal (sleepers). The wife of Ramesh .
Chand identified the sleepers to be that of her husband. These were taken into possession vide memo Ex. PW1/B.
15. PW-8, Sh. Nanak Chand, deposed that on 11.08.2011 at about 9:00 p.m., he received a telephone call from her sister, who informed him that Ramesh Chand was beaten up by Subhash Chand and his family members had kidnapped him. He hired a vehicle and reached at the spot at about 9:15 p.m. Police and other villagers were on the spot. There were blood stains on the gate and on the passage leading towards Khad. Police clicked the photographs and lifted samples of blood with the help of cotton from the spot in the match box and sealed in a cloth parcel and taken into possession vide memo Ex.
PW8/A.
16. PW-9, Sh. Onkar Singh, deposed that accused Anil Kumar made a disclosure statement vide Ex.PW9/A, vide which he disclosed that he could get recover the parts of body of deceased Ramesh Chand from Jauh/Chanth Khad. Thereafter, accused led the police party to Jauh/Chanth Khad and reached there at 5:30 p.m. Accused pointed out the spot and got recovered the trunk (Dhad) of the dead body underneath the boulders. Police took into possession the trunk vide memo Ex. PW9/B. On 16.08.2011, he and Rakesh Kumar were present at Jauh Khad in the evening. Police brought Anil Kumar accused in ::: Downloaded on - 15/04/2017 18:22:00 :::HCHP 17 custody there, where accused Anil Kumar disclosed during interrogation that he could get recover the parts of the body from the place where he had hidden them. Police recorded the statement of .
accused vide Ex. PW9/C. Thereafter, the accused led the police to the spot and got recovered both feet and one half arm of the dead body of Ramesh Chand, which were taken into possession by the police vide memo Ex. PW9/D. On 20.08.2011, police recovered fingers of the deceased Ramesh Chand from the bushes in putrid condition. On 21.08.2011, accused Anil Kumar got recovered one drat, which was taken into possession vide memo Ex. PW9/G.
17. PW-10, Sh. Majid Mohammad, deposed that Nazeer Mohammad was his brother-in-law. He visited his house on 12.08.2011 alongwith one person whose name he came to know as Subhash Chand later on. They stayed in his house and left his house on 13.08.2011.
Subhash Chand had left a bag there containing his clothes in his house. During investigation on 18.08.2011, police visited his house and he handed over the bag containing clothes of Subhash Chand to the police. Police sealed the clothes of Subhash Chand in a cloth parcel and taken into possession vide memo Ex. PW4/A.
18. PW-11, Smt. Parkasho Devi, deposed that she and her daughter-in-law were cutting maize crop in her field. They felt some foul smell from the side of maind. She saw the object and observed some round type bones, on which, she called one Jiwan Kumar. She ::: Downloaded on - 15/04/2017 18:22:00 :::HCHP 18 suspected that this object could be the bones of dead body of a human being as recently one Ramesh Chand was missing.
19. PW-12, Smt. Neelam Kumari deposed that police has taken .
into possession the bones of neck and head of human being vide Ex.
PW12/A. PW-13, Sh. Dalip Kumar, deposed that during investigation, accused Anil Kumar made disclosure statement that he could get the drat recovered from the spot. His statement was recorded vide Ex. PW 13/A. Thereafter, accused Anil Kumar led the police party to Chanth Khad and got recovered the drat Ex. P5
20. PW-14, Sh. Harbans Lal, deposed that during August, 2011, he was posted at Police Station Bhoranj. He alongwith other police officials and HHGs. were deputed for the security of the house of deceased Ramesh Chand at village Badoh. He remained there for about 15-20 days. When he was on duty, he found a sim lying in the passage downward to the house of deceased Ramesh Chand. He was not aware of the owner of sim, so he used the said sim in his mobile. There was forty eight rupees balance. The number of the sim was 98174-74972.
Later on, he came to know through Police Station Bhoranj that the sim belonged to deceased Ramesh Chand. In his cross-examination, he deposed that the sim was found at a distance of 10-20 yards from the house of Ramesh Chand. He did not tell to his senior police officials and Home Guards about the sim. He admitted that if something is found on the way, then it becomes his duty to deposit the same with the Police Station.
::: Downloaded on - 15/04/2017 18:22:00 :::HCHP 1921. PW-15, Sh. Kuldip Kumar, is a formal witness. PW-16, Sh.
Roshan Lal, deposed that he sold the land to Ramesh Chand through registered sale deed during the month of February, 2011 and mutation .
was sanctioned in the month of April, 2011. When he sold this land to Ramesh Chand, accused Subhash Chand and his family members, whose land was also situated near the aforesaid land, asked him that he also wanted to purchase that land and why did he sell land to Ramesh Chand. He told him that this land was situated near the house of Ramesh Chand, therefore, he sold it to him. In his cross-
examination, he deposed that he came to know about the missing of Ramesh Chand on 11.08.2011. He did not go to the house of Ramesh Chand, because he was advised rest because of his surgical operation.
He was called by the police to Police Station Bhoranj after 2-3 months of missing of Ramesh Chand. Subhash Chand had never offered for the purchase of said land before he sold the same to Ramesh Chand.
22. PW-17, Sh. Gurdev Singh, deposed that on 12.08.2011, at about 5:30 p.m., he reached Barthin and accused Subhash met him on the Chowk and he handed over the bag alongwith suite. PW-18, Shri Purshotam Dhiman is the son of deceased Ramesh Chand. According to him, in April, 2011, they had purchased 15 marlas land from one Roshan Lal of their village, which was situated near their house. The boundary of the land of Subhash Chand adjoins the aforesaid land. He also deposed that since they belong to Lohar caste, which falls within the category of scheduled caste, therefore, accused Subhash Chand ::: Downloaded on - 15/04/2017 18:22:00 :::HCHP 20 used to call them Lohar and he wanted to purchase that land and since they had purchased this land, therefore he developed some ill will against them and quarreled with them in the month of April, 2011. A .
case was registered against the accused persons in Police Station Bhoranj. On 11.08.2011, when he was at Chandigarh, his mother telephoned him and informed that accused Subhash Chand and his family members had beaten his father and kidnapped him. He hired a vehicle and reached on the spot at about 2:30 a.m. on the next day. He saw some blood stains on the passage, on the gate and inside the gate of the house of accused Subhash Chand. Police, villagers and his relatives were present there. They all searched for his father, but he could not be traced. The sleepers of his father were found near the house of Vidyasagar and his mother identified the sleepers that of his father. On 14.09.2011, when he was present at Baddi, a phone call was received from his mother and she informed that head of his father was found in the field of Parkasho Devi at Dathwin village. On this, he alongwith his mother and uncle Besari Ram reached on the spot where her maternal brother Manoj Kumar was present alongnwith police and other Panchayat members. They found there some round shaped bones in decomposed condition. Police inspected the object and took photograph of the same and took the same into possession. Thereafter, the police took that object to R.H., Bilaspur for post mortem. In his cross-examination, he admitted that when he reached at the house of Subhash Chand at 2:30 a.m., his mother was present there. He did not ::: Downloaded on - 15/04/2017 18:22:00 :::HCHP 21 know whether Pushpa, Rekha and Baby were present or not, volunteered that number of ladies were present there at that time. He also tried to search his father. He alongwith his cousin brother Manoj .
Kumar and his brother-in-law Ravinder had gone to search his father.
They kept on searching him till morning, but he could not tell the exact time till when he searched him. He had stated to the police in his statement that since they belong to Lohar caste, which falls within the category of Scheduled Caste and Subhash Chand used to call them Lohar (he was confronted with his statement Mark-DG, in which it was not so recorded). He had told the police that he had seen the blood stains on the passage (he was confronted with his statement Mark-DG, in which it was not so recorded). He did not remember whether he had told the police that accused Subhash wanted to purchase the land which was purchased by them. He did not know whether police had called dog squad in the village.
23. PW-19, Dr. Anil Dhiman, deposed that on 01.09.2011, police of Police Station Bhoranj had moved an application Mark-V for taking blood sample of Purshotam Dhiman and Rattan Chand for DNA test. Accordingly, he took blood sample of the aforementioned persons, sealed it and handed over the same to the police for further test at FSL, Junga on the same day.
24. PW-20, Dr. N.K. Sankhyan, Medical Officer, deposed that on 16.08.2011, police of Police Station Bhoranj moved an application Mark-W for conducting post mortem examination on the body of ::: Downloaded on - 15/04/2017 18:22:00 :::HCHP 22 deceased Ramesh Chand. It was also mentioned in the application that other parts of the body were also recovered by the police and therefore, it was requested that post mortem may be conducted on 17.08.2011.
.
He conducted the post mortem examination on 17.08.2011 of deceased Ramesh Chand. The parts of the body were brought by SI Desh Raj and other police officials. According to him, the probable time that elapsed between injuries and death could not be ascertained. The probable time that elapsed between death and post mortem was 4 days and 2 weeks.
He prepared the post mortem report Ex. PW20/C. On receipt of chemical report from Forensic Science Laboratory, Junga, Mark-AC, police produced the same before him for obtaining final opinion of cause of death of the deceased. After perusal of report his opinion was that the cause of death could not be ascertained due to advance decomposition of the body. His opinion is Ex. PW-20/D. On receipt of report from FSL, Junga, dated 24.10.2011, Mark-AD, police again sought final opinion. He finally opined that the different parts of mutilated body whose post mortem was conducted on 17.08.2011 were of deceased Ramesh Chand, father of Sh. Purshotam Dhiman, as per DNA matching profile report. DNA cross-matching could not be possible for the parts of the body whose post mortem was conducted on 21.08.2011 and 15.09.2011 probably due to advance decomposition of the body. The deceased had neither consumed alcohol nor poison. The cause of death of deceased could not be ascertained due to advance decomposition of the dead body. His opinion is Ex. PW20/E. He gave ::: Downloaded on - 15/04/2017 18:22:00 :::HCHP 23 his opinion again vide Ex. PW 20/F to the effect whether the injuries could be caused with drat Ex. P5. In his cross-examination, he has admitted that the police has not shown the weapon of offence to him on .
17.08.2011.
25. PW-21, Sh. Hanumant Rai, has deposed that on 12.08.2011 an e-mail was received for CDR of Mobile no. 94180-82515 and the same was provided on 18.08.2011, which was Ex. PW21/A. PW-22, Devender Verma has proved the bill Ex. PW 22/A of Cell No. 98162-59154. PW-23, Sh. Rup Chand, has prepared Tatima Ex.
PW23/A. PW-24, Ms. Kamlesh Kumari, has proved copy of notification Ex. PW24/B. PW-25, Sh. Kashmir Singh has proved photographs Ex.
PW25/A-1 to Ex. PW25/A-34 and DVC is Ex. PW25/A-35 and DVD is Ex. PW25/A-36. PW-26, HC Jaswant Singh deposed that the case property was deposited with him by SI Desh Raj on 12.08.2011, Inspector/SHO Sohan Lal on 13.08.2011 and by HHC Suresh Kumar on 18.08.2011. SI Desh Raj again deposited the case property with him on 19.08.2011 and Inspector/SHO Sohan Lal also deposited the case property with him on 21.08.2011. On the same day, Constable Surinder Kumar deposited the case property with him. The case property was also deposited with him on 14.09.2011 by Inspector/SHO Sohan Lal and on 15.09.2011 by ASI Karan Singh. He sent the case property to FSL, Junga on 18.08.2011, 22.08.2011, 05.09.2011 and 16.09.2011 vide RC No. 131/11, 132/11, 133/11, 134/11, 143/11 and 156/11.
26. PW-27, Constable Navneet Kumar, deposed that on ::: Downloaded on - 15/04/2017 18:22:00 :::HCHP 24 18.08.2011, MHC Jaswant Singh handed over to him two sealed parcels duly sealed alongwith relevant documents for depositing the same with FSL, Junga, which he deposited there on 19.08.2011 and handed over .
the RC to MHC, Police Station Bhoranj.
27. PW-28, Constable Surinder Singh and PW-29, Constable Rakesh Kumar, have deposed that MHC Jaswant Singh sent sealed parcels through them to FSL Junga and Finger Print Bureau at Bharari. PW-30, Constable Vijay Kumar, deposed that on 16.09.2011, MHC Jaswant Singh handed over to him one container duly sealed with seal Kshetriya Parishad containing round shaped bones and head of human being for depositing the same at FSL, Junga, which he has deposited on 16.09.2011. PW-31 ASI Vinod Kumar, has deposed that he remained associated with investigation in this case and SHO Police Station Bhoranj during investigation of the case, took into possession the clothes of accused Ruchi Kant and Anil Kumar, which were handed over to ASI Rakesh Kumar vide seizure memo Ex. PW31/A.
28. PW-32, ASI Rakesh Kumar deposed that on 15.08.2011, accused Anil Kumar was in police custody at Police Station, Bhoranj.
During interrogation, he disclosed that he had concealed the trunk of deceased Ramesh Kumar at Chanth Khad and he could get it recovered.
His statement was recorded vide Ex. PW9/A. Thereafter, Anil Kumar led the police party towards Chanth Khad and on reaching there, he pointed out the spot. On removing the boulders, a trunk of the human being was recovered. The photographs were taken and the trunk was ::: Downloaded on - 15/04/2017 18:22:00 :::HCHP 25 taken into possession vide recovery memo Ex. PW9/B. In his cross-
examination, he has admitted that the trunk was in a decomposed and mutilated condition.
.
29. PW-33, ASI Karan Singh, deposed that on 16.08.2011, when accused Anil Kumar was in police custody and was present at Joh. He disclosed in his presence as well as of Onkar Singh and Rakesh Kumar that he had concealed the parts of body of deceased Ramesh Chand at Chanth Khad, which spot was known to him and he could get the same recovered. His statement was recorded vide Ex. PW9/C. Thereafter, Anil Kumar led the police party and witnesses to Chanth Khad. After clicking the photographs of the same, the body parts were taken into possession vide recovery memo Ex. PW9/D.
30. PW-34, Manmohan Singh, who has signed Ex. PW13/A, was declared hostile. He was cross-examined by the learned Public Prosecutor. PW-35, Sh. Anjani Jaswal, is a formal witness. PW-36, Sh.
Surya Parkash, Civil Judge (Junior Division)-cum-Judicial Magistrate 1st Class, Karsog, District Mandi, H.P. proved the proceedings made vide Ex. PW36/A. He also proved Ex. PW4/B and Ex. PW4/C. PW-37, Sh. Jagdish Kumar is a formal witness.
31. PW-38, SI Desh Raj, deposed that on 11.08.2011, he received a phone call of Sukhdei, wife of Ramesh Chand in the Police Station, on which rapat No. 37-A, Ex. PW38/A was entered. He reached the spot. Statement of Sukhdei was recorded vide Ex. PW1/A. He ::: Downloaded on - 15/04/2017 18:22:00 :::HCHP 26 conducted the investigation and took into possession the case property and deposited the same with MHC Police Station Bhoranj.
32. PW-39, Inspector Sohan Lal deposed that the statement of .
accused Anil Kumar was recorded under Section 27 of the Indian Evidence Act in the presence of witnesses Onkar Singh and Rakesh Kumar vide Ex. PW9/A. Thereafter, the accused alongwith police party and witnesses went to the spot from where a trunk of human being was recovered. The recovered trunk was taken into possession vide recovery memo Ex. PW9/B. A disclosure statement was made by accused Anil Kumar again on 16.08.2011 vide Ex. PW9/C and parts of the body were recovered vide Ex. PW9/B. Accused Anil Kumar also made a disclosure statement vide Ex. PW13/A that he could get the drat recovered from Chanth Khad. The drat was recovered vide Ex. PW9/G. The statement of Nazirdin was also recorded.
33. PW-40, Inspector Ramesh Chand, PW-41, MHC Raghujeet Singh, PW-42, SI Santokh Singh and PW-43, SI Des Raj are formal witnesses. PW-44, Inspector Sohan Lal deposed that he moved an application on 02.09.2011 to JMIC-II, Hamirpur vide Ex. PW44/A for recording the statement of Nazirdin under Section 164 Cr. P.C. On 07.09.2011, he moved an application Ex. PW44/B for issuance of caste certificate of deceased Ramesh Chand, on which caste certificate of deceased Ramesh Chand was issued by Patwari Halqua Deog vide Ex.
PW44/C. He also moved an application Ex. PW44/F for post mortem of trunk of deceased Ramesh Chand.
::: Downloaded on - 15/04/2017 18:22:00 :::HCHP 2734. PW-1, Sukhdei has testified that when her husband did not come at 7:30 p.m, she came out to her courtyard and waited for his arrival. She heard the cries of her husband from the side of house of .
accused Subhash. She was in the courtyard, at that time, Rekha Devi wife of Prem Chand came to her house and told that family of Subhash Chand was beating her husband Ramesh Chand. Then, she started weeping loudly and called Dina Nath. Thereafter, Dina Nath, Braham Dass, Gian Chand, Santosh Kumari, Pushpa Devi and Rekha Devi came to her house and then went towards the house of Subhash Chand. Pushpa Devi and Baby who were already present on the spot told them that accused Ruchikant, Anil Kumar, Subhash Chand, Raj Kumari and Asha Devi had beaten Ramesh Chand and taken him towards Khad. According to her, in April, 2011, they had purchased 15 Marlas land from one Roshan Lal, which was quite adjacent to their house and the boundary of the land of the accused persons adjoins to that land and accused persons wanted to purchase that land and due to that reason, they had developed some enmity with them. In her cross-examination, she has admitted that Rekha was the daughter of maternal uncle of Baby. She also admitted that Pushpa and Baby were first cousins. Purshotam was her son. Witness Nanak was her brother and Ravi Kumar was her son-in-law. She visited the house of accused Subhash Chand, but did not know whether she visited there after half an hour or one hour. When they reached the house of Subhash Chand, Baby and Pushpa were already there. She had not gone to search for ::: Downloaded on - 15/04/2017 18:22:00 :::HCHP 28 her husband, but her relatives had gone to search for her husband. She did not remember whether she had told the police that Santosh Kumari and Pushpa Devi had also come to her house alongwith Dina Nath (she .
was confronted with her statement Ex. PW1/A, where names of these ladies are not mentioned there). However, she volunteered that Pushpa Devi was not that Pushpa Devi who was a witness in this case. She had told the police that when they reached the house of accused Subhash, Subhash and his family members were not there (she was confronted with her statement Ex. PW1/A, in which it was not so recorded). She had also told the police that Pushpa Devi and Baby were already present there who had told her that the accused had beaten her husband and taken him towards Khad (she was confronted with her statement Ex. PW1/A, in which it is not so stated). She had told the police that accused Ruchikant and Anil Kumar had threatened to kill her entire family whenever they get an opportunity (she was confronted with her statement Ex. PW1/A, in which it was not so stated). She did not know whether her relatives searched her husband towards the Khad or not. She did not know whether police went towards the Khad to search her husband, however, volunteered that on that day about 40-50 police personnel were present there on the spot. There are improvements and variations in her statement recorded in the Court and the earlier statement recorded under Section 164 Cr. P.C., Ex.
PW1/A. When she heard the cries of her husband, she would have rushed towards the house of accused. She did not know whether she ::: Downloaded on - 15/04/2017 18:22:00 :::HCHP 29 visited the spot after half an hour or one hour. According to her, accused had taken her husband towards the Khad, but she did not know whether her relatives searched for her husband towards the Khad .
or not. She had not gone to search her husband, but her relatives had gone to search her husband. If she had reached in the house of Subhash Chand, what prevented her from searching her husband when she was accompanied by other persons also.
35. PW-2, Rekha Devi testified that she received a call from Pushpa Devi. She disclosed her that accused persons were beating Ramesh Chand. She went to the house of Ramesh Chand, where PW-1 was present in the courtyard. She told her that she got a telephonic call from Pushpa Devi, who disclosed her that the accused persons were beating Ramesh Chand. On this, PW-1 started weeping loudly and on hearing her cries, Dina Nath, Braham Dass, Gian Chand and two three other ladies of the locality gathered there. Thereafter, they all went to the house of accused Subhash Chand. PW-1, Sukhdei has also deposed that Pushpa Devi and Rekha Devi had come to their house, but PW-2 Rekha Devi deposed that Baby and Pushpa were present in their house when they went towards the house of accused. PW-2, Rekha Devi has also admitted that at times, there were altercations between her family members and family members of accused persons. The Khad was about 1 km. away from the house of the accused, but they had not searched the deceased Ramesh Chand on the next day of the occurrence. It was ::: Downloaded on - 15/04/2017 18:22:00 :::HCHP 30 unusual conduct on the part of PW-1 Sukhdei and PW-2 Rekha Devi not to search for Ramesh Chand.
36. PW-3, Smt. Pushpa Devi deposed that she was cooking food .
in her kitchen on 11.08.2011 at about 7:45 p.m. In the meantime, her cousin sister Baby came to her and told that Subhash Chand and his family members were beating Ramesh Chand. On this, she came out of her kitchen and saw Ramesh Chand was crying and requesting for his rescue in the gate of house of accused Subhash Chand. She narrated the incident to Smt. Rekha Devi on her landline telephone. Thereafter, she and Baby went to the house of accused persons where Ramesh Chand was lifted by accused Subhash Chand, Ruchikant and Anil and they went towards Khad side. PW-3, Pushpa Devi has categorically admitted that she never went to the house of Accused Subhash Chand, but had made a call to Rekha Devi. Even, she has not gone to the Khad to search Ramesh Chand along with other persons. She talked to Rekha about 15 minutes and thereafter, she came to the house of Baby.
Father of the Baby was also present in the house.
37. PW-5, Baby deposed that she peeped through the window of her house and saw that Ramesh Chand was being beaten up by accused persons Subhash Chand, Ruchikant and Anil Kumar. Accused Raj Kumari and her daughter-in-law Asha Devi were also standing there. They were beating Ramesh Chand by giving kick and fist and blows. When she was peeping through the window, Subhash Chand and Anil Kumar saw her looking towards them. Thereafter, they started ::: Downloaded on - 15/04/2017 18:22:00 :::HCHP 31 taking Ramesh Chand towards verandah. Thereafter, they went to the house of her cousin sister Pushpa Devi and she narrated about the beatings being given to Ramesh Chand by the accused person, on .
which she also came out and saw the beatings being given by accused persons. Thereafter, Pushpa tried to make phone call to Dina Nath, but the call could not mature. Then, Pushpa Devi made a telephone call on the landline phone of Rekha Devi and informed her regarding the beatings. Thereafter, she and Pushpa Devi came to her courtyard and saw that Ramesh Chand was being taken away by accused Subhash Chand, Ruchikant and Anil Kumar towards Khad while accused Asha Devi and Raj Kumari were following them at some distance. The father of Baby was present in the house. His statement has not been recorded.
The explanation given by Baby is that after hearing about the incident, his blood pressure shot up and after taking medicine, he went to sleep.
PW-1, Sukhdei in her cross-examination has deposed that she told the police that Pushpa Devi and Santosh Kumari had come to her house alongwith Dina Nath (she was confronted with her statement Ex.
PW1/A, where names of these ladies were not mentioned).
38. According to the prosecution case, PW-4, Nazeer Deen has made a statement under Section 164 Cr. P.C. He was declared hostile while recording his statement in the Court. In his cross-examination by the learned Public Prosecutor, he has deposed that he was brought to the Court and the police has asked him to make the statement in the ::: Downloaded on - 15/04/2017 18:22:00 :::HCHP 32 manner which was recorded by the police, otherwise he would be in trouble.
39. PW-36, Sh. Surya Parkash, Civil Judge (Junior Division)-
.
cum-Judicial Magistrate 1st Class in his cross-examination has admitted that he has not seen in the police file as to where statements of the witnesses were recorded under Section 161 Cr. P.C. It did not come to his notice that witness Nazeer Deen remained in the police station from the date when his statement under Section 161 Cr. P.C. was recorded till he was produced before the Court. He also did not inquire from the police and from the witness that where from the witness was produced before him. However, the fact of the matter is that PW-4, Nazeer Deen remained in the police custody till his production before the Court. It casts doubt about the statement of PW-
4 Nazeer Deen under section 164 of the Code of Criminal Procedure.
40. PW-7, Sh. Ishwar Dass has proved the memo Ex. PW1/B, whereby sleepers were taken into possession by the police. PW-9, Onkar Singh deposed that the accused Anil Kumar has made a disclosure statement vide Ex. PW9/A, Ex. PW9/B and Ex. PW9/C, on the basis of which the body parts were got recovered by him. There is overwriting on Ex. PW9/B as well as on Ex. PW9/C.
41. PW-33, ASI Karan Singh has admitted that there is overwriting in Ex. PW9/C. PW-39, Inspector Sohan Lal has also admitted that there is overwriting in Ex. PW9/C as well as Ex. PW9/D. The drat Ex. P5 was got recovered from the accused on the basis of ::: Downloaded on - 15/04/2017 18:22:00 :::HCHP 33 disclosure statement Ex. PW13/A. PW-9, Sh. Onkar Singh, has admitted in his cross-examination that there was heavy rain from 12.08.2011 to 15.08.2011 and the flood had come in the Khad. 25-30 .
police officials used to come to the place of recovery on the aforesaid dates. PW-14, Sh. Harbans Lal has deposed the manner in which sim was recovered. His version does not inspire confidence. According to him, when he was on duty, he found a sim lying in the passage downward to the house of deceased Ramesh Chand.
42. The motive attributed to the cause of killing the deceased is the purchase of plot of land by the deceased family. According to PW-1, Smt. Sukhdei, they had purchased 15 marlas of land from PW-16, Sh.
Roshan Lal. Accused were also interested in buying the same piece of land. This piece of land adjoins the property of the accused. PW-1, Smt. Sukhdei has categorically deposed in her cross-examination that there was some dispute with regard to the buying of piece of land from PW-
16, Sh. Roshan Lal. According to PW-16, Sh. Roshan Lal, the accused has asked from him why he has sold the land to the family of deceased.
He told them that since this land was situated near the house of deceased Ramesh Chand, therefore, he sold the same to him. In his cross-examination, he has admitted that Subhash Chand had never offered to purchase the land before they sold the land to Ramesh Chand.
43. The accused have also been charged under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) ::: Downloaded on - 15/04/2017 18:22:00 :::HCHP 34 Act, 1989. According to PW-18, Sh. Purshotam Dhiman, in April, 2011, they had purchased 15 Marlas land from one Roshan Lal of their village which was situated near their house. Accused Subhash Chand used to .
call them "Lohar" and he wanted to purchase that land and since they had purchased this land, therefore, he developed some ill will against them and quarreled with them in the month of April, 2011. A case was registered against the accused persons in Police Station Bhoranj. PW-
24, Ms. Kamlesh Kumari deposed that on 23.10.2011, police moved an application for providing notification regarding SC & ST category. She prepared a photo copy of the notification and provided the same to the police at Police Station Bhoranj vide letter Ex. PW24/A.
44. PW-35, Sh. Anjani Jaswal, deposed that after adding the offence under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as 'the Act'), the case file was handed over to him for further investigation. He did not know when the offence under the Act was added.
45. PW-38, SI Desh Raj deposed that at the time of his investigation, the offence under the SC/ST Act was not added and it was added later on by the SHO PW-39. PW-39, Inspector Sohan Lal did not remember when the offence under the SC/ST Act was added. It has come in the statement of PW-38, SI Desh Raj that there was nothing against the accused during the investigation to book the accused under the SC/ST Act, but it was only later on when SHO has booked the accused under the SC/ST Act. The accused could be charged under the ::: Downloaded on - 15/04/2017 18:22:00 :::HCHP 35 Act only if they have committed the offence against the victim only because of the reason that he belonged to Scheduled Caste category.
There was absolutely no material on record that the deceased was killed .
since he happened to be the member of Scheduled Caste category.
46. We have gone through the statement of PW-18, Sh.
Purshotam Dhiman closely. He has stated to the police in his statement that since they belong to Lohar caste, which falls within the category of Scheduled caste, therefore, accused Subhash Chand used to call them Lohar (he was confronted with his statement Mark-DG in which it was not so recorded). There should be sufficient material on record at the time of framing of the charge under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
47. Their Lordships of the Hon'ble Supreme Court in Masumsha Hasanasha Musalman Vs. State of Maharashtra (2000) 3 Supreme Court Cases 557 have held that to attract the provisions of Section 3(2)(v) of the Act, the sine qua non is that the victim should be a person who belongs to a Scheduled Caste or a Scheduled Tribe and that the offence under the Indian Penal Code is committed against him on the basis that such a person belongs to a Scheduled Caste or a Scheduled Tribe. In the absence of such ingredients, no offence under Section 3(2)(v) of the Act arises. Their Lordships have held as under:
"5. The trial Court accepted the evidence of Deubai (PW-4) and Manoj (PW-5). Manoj corroborated the evidence tendered by Deubai to the extent of having seen the appellant having a Jambiya in his hand when Deubai (PW-4) ::: Downloaded on - 15/04/2017 18:22:00 :::HCHP 36 was following him and that he found something very suspicious so he followed both of them. That is how he witnessed the scuffle and the injuries caused by the appellant to the deceased. Deubai admitted in the course of .
her cross-examination that scuffle took place between the appellant and her husband and her husband fell on the ground, that for considerable time, the scuffle went on; that while on some occasions the appellant was on the ground, on some other occasions her husband was on the ground; that the appellant and the deceased were overpowering each other. PW-5 also stated that he saw that in front of the hospital of Dr. Kalwaghe the deceased coming and the appellant was following him with dagger and gave blows of dagger on the person of the deceased. The trial Court found from these circumstances that the appellant had no intention to kill the deceased and that after giving one blow, other injuries had been caused due to scuffle. This was amply supported by the evidence of the Medical Officer that injuries Nos. 2 and 4 to 10 could be caused in the scuffle, or injuries other than injury No. 1 could be caused due to obstruction by the deceased. Therefore, it could not be inferred that the appellant intended to inflict more injuries than injury No. 1. If this aspect is borne in mind, it would be clear that the appellant had given only one blow with the Jambiya resulting in his death and, therefore, the trial Court found that it would not be proper to convict the appellant under Section 302, I.P.C. The argument relating to private defence was straightway rejected for there were no injuries on the person of the appellant and the attack had been made by the appellant himself. The trial Court discarded the evidence relating to discovery of the weapon and jacket for the reasons set forth in the order. The trial Court also convicted ::: Downloaded on - 15/04/2017 18:22:00 :::HCHP 37 the appellant for the offence arising under Section 3(2)(v) of the Act only on the basis that there was no controversy that the victim belonged to the scheduled caste and convicted him."
.
In the instant case, the ingredients of Section 3(2)(v) of the Act were lacking from the very beginning and the prosecution has not led any evidence to prove this charge.
48. Their Lordships of the Hon'ble Supreme Court have reiterated the same principles in Dinesh alias Buddha Vs. State of Rajasthan (2006)3 Supreme Court Cases 771 and have held that sine qua non for Section 3(2)(v) is that the offence in question must have been committed against a person on the ground that such person is a member of SC/ST. Their Lordships have held as under:
"15. Sine qua non for application of Section 3(2)(v) is that an offence must have been committed against a person on the ground that such person is a member of Scheduled Castes and Scheduled Tribes. In the instant case no evidence has been led to establish this requirement. It is not case of the prosecution that the rape was committed on the victim since she was a member of Scheduled Caste. In the absence of evidence to that effect, Section 3(2)(v) has no application. Had Section 3(2)(v) of the Atrocities Act been applicable then by operation of law, the sentence would have been imprisonment for life and fine."
48. Their Lordships of the Hon'ble Supreme Court Ramdas and others Vs. State of Maharashtra (2007) 2 Supreme Court Cases 170 ::: Downloaded on - 15/04/2017 18:22:00 :::HCHP 38 have held that the mere fact that the victim happened to be a girl belonging to a Scheduled Caste does not attract the provisions of the Act. Their Lordships have held as under:
.
"11. At the outset we may observe that there is no evidence whatsoever to prove the commission of offence under Section 3(2)(v) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The mere fact that the victim happened to be a girl belonging to a scheduled caste does not attract the provisions of the Act. Apart from the fact that the prosecutrix belongs to the Pardhi community, there is no other evidence on record to prove any offence under the said enactment. The High Court has also not noticed any evidence to support the charge under the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and was perhaps persuaded to affirm the conviction on the basis that the prsecutrix belongs to a scheduled caste community. The conviction of the appellants under Section 3(2)(v) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 must, therefore, be set aside."
49. PW-20, Dr. N.K. Sankhyan, Medical Officer conducted the post mortem on the parts of the body collected by the police. His first opinion was that the cause of death could not be ascertained due to advance decomposition of the body. He has prepared post mortem reports Ex. PW20/A, Ex. PW20/B, Ex. PW20/C and Ex. PW20/D. His final opinion was also that the cause of death of the deceased could not be ascertained due to advance decomposition of the body. He was ::: Downloaded on - 15/04/2017 18:22:00 :::HCHP 39 shown the weapon of offence, i.e., drat Ex. P5 on a subsequent date and not for the first time when he has conducted the post mortem on 17.08.2011. Police has collected various parts of the body. Firstly, the .
body parts were brought before Dr. N.K. Sankhyan on 16.08.2011 and secondly the body parts were received on 17.08.2011. PW-20, Dr. N.K. Sankhyan has not held any precipitant test for determining that all the parts belong to one person. He did not take any opinion regarding cause of death from specialist of anatomy. Thus, the opinion of Dr. N.K. Sankhyan remained that the cause of death could not be ascertained due to advance decomposition and mutilation of the body.
50. PW-32, ASI Rakesh Kumar has also admitted that the trunk was in a mutilated condition. PW-33, ASI Karan Singh has admitted that there is overwriting in Ex. PW9/C. PW-39, Inspector Sohan Lal has also admitted that there is overwriting in Ex. PW9/C as well as Ex. PW9/D. PW-9, Sh. Onkar Singh and PW-34 Manmohan Singh have also not supported the case of prosecution qua the recovery of drat. PW-34 Manmohan Singh was declared hostile. He has denied the suggestion that the person had disclosed before the police that he had concealed a drat in Chanth Khad and he could get the same recovered by giving demarcation. He also denied that police has recorded his statement.
51. Mr. Ramesh Thakur, learned Assistant Advocate General has vehemently argued that Anil Kumar has made an extra judicial confession before PW-6, Sh. Surjit Kumar. The statement of PW-6, ::: Downloaded on - 15/04/2017 18:22:00 :::HCHP 40 Surjit Kumar cannot be believed. He was a planted witness. According to his version, he was working in the shop. Accused Anil Kumar came there. He inquired from the accused about his residence, on which he .
disclosed that he had to come from Bhareri side. On this, he inquired about the episode that took place at Bhareri side regarding missing of a person, on which accused Anil Kumar said that he had done his job.
Thereafter, police had come to his shop for taking tea. After Anil Kumar left the shop, he disclosed the facts to the police. He did not remember the exact number of police officials sitting in his shop. He also did not remember whether the police officials to whom he disclosed the aforesaid facts were from the Police Station or from the Battalion.
According to him, the police officials to whom he told the aforesaid facts, had not noted down the same in writing at that time. Moreover, extra judicial confession is not a substantive piece of evidence. What matters, is the statement of the witness made in the Court. According to the prosecution case, body parts of the deceased were recovered after a few days from the Khad. It is not believable that the parts of the body could still lying in the Khad, when there was heavy rain from 12.08.2011 to 15.08.2011 and the Khad was flooded. It is also the case of the prosecution that the deceased could not be traced and, therefore, Dy. SP has constituted as separate team to trace the deceased.
However, the Dy. SP who had reached the spot and constituted a separate team for searching the deceased, has not been examined.
::: Downloaded on - 15/04/2017 18:22:00 :::HCHP 4153. Most of the witnesses cited by the prosecution are closely related to each other. The statements of the closely related witnesses can be relied upon, but it must inspire confidence. In the present case, .
statement of these witnesses do not inspire confidence. Consequently, the prosecution has failed to prove the charges levelled against the accused beyond reasonable doubt.
54. Accordingly, in view of the observations and discussions made hereinabove, Criminal Appeal No. 4199 of 2013 is allowed and Criminal Appeal No. 37 of 2014 is dismissed. The judgment, dated 24.08.2013/26.08.2013, is set aside. The accused/appellants in Criminal Appeal No. 4199 of 2013 are acquitted of the charges framed against them. Fine amount, if already deposited, be refunded to the accused forthwith. They be released forthwith, if not required in any other case. The Registry is directed to prepare the release warrants and send the same to the concerned Superintendent of Jail.
(Rajiv Sharma)
Judge
(Sureshwar Thakur)
Judge
June 15 , 2015
(bhupender)
::: Downloaded on - 15/04/2017 18:22:00 :::HCHP