Himachal Pradesh High Court
Shiv Kumar @ Monu & Ors vs State Of Himachal Pradesh on 31 October, 2023
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. A. No. 542 of 2019
Reserved on: 17.10.2023
Date of decision: 31.10.2023
Shiv Kumar @ Monu & Ors. ...Appellants
Versus
State of Himachal Pradesh ...Respondent
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Mr. Justice Ranjan Sharma, Judge. Whether approved for reporting? No. For the Appellants : Mr. Ajay Kochhar, Sr. Advocate with Mr. Vivek Sharma, Advocate.
For the Respondent: Mr. I. N. Mehta, Sr. Addl. A.G. with Ms. Sharmila Patial, Addl. A.G. and Mr. J.
S. Guleria, Dy. A.G. Tarlok Singh Chauhan, Judge.
The appellants, after trial, have been convicted and sentenced to undergo rigorous imprisonment for life under Section 302 read with Section 34 of the Indian Penal Code and to a fine of Rs. 5,000/- each and in default of payment of fine, to further undergo simple imprisonment for a period of six months each.
2. The case of the prosecution, in brief, is that on 6.12.2014, an information was received at Police Station Nalagarh from Community Health Center, Nalagarh that a person had been brought to the Hospital in an injured 2 condition, in case of beating and action be taken in the matter. The aforesaid information was entered in the daily diary vide GD entry No. 46(A) at about 8:00 p.m. by Inspector/SHO, Kshama Dutt, P.S. Nalagarh. SI Dharampal, the Investigator alongwith other police officials proceeded to the Civil Hospital, Nalagarh, where one Sh. Baljit Singh (the complainant) recorded his statement under Section 154 Cr.P.C. to the effect that on the evening of 06.12.2014, while he was coming to his house at village Basor after attending the marriage of his cousin then at about 6.30 p.m. when he reached at place Basor, he received a telephonic call from one Santokh Singh who informed him that an Axe blow had been given to Kunti @ Ram Karan on his head by the inhabitants of village Thana. On inquiry from Santokh Singh, it was disclosed that Monu son of Sh. Poho Lal who was accompanied by other boys and women had attacked him. On this, the complainant made a telephone call to the brother of Monu named Sonu, and asked about his whereabouts it was disclosed to the complainant, that he was in the house of his in-laws and when he inquired from Sonu, as to who had given Axe blow to Kunti @ Ram Karan, he told that whosoever has assaulted, has assaulted and it hardly matters. Thereafter, the complainant came to village Thana and it was told to him by the people that Kunti @ Ram Karan had been moved to Civil Hospital Nalagarh and there he found that Kunti 3 @Ram Karan had succumbed to injuries on his head and stomach. He also stated that Kunti @ Ram Karan had quarrelled with Monu four days earlier at a marriage party at village Thana and on account of that appellants Monu and his associates were nurturing a grudge against Kunti @ Ram Karan and had killed him on account of said animosity.
3. The statement of the complainant was recorded under Section 154 Cr.P.C. and was sent to P.S Nalagarh through HHG Ramesh Kumar for registration of a case and based on which, FIR No: 290/2014, dated 6.12.2014, under Section 302 IPC read with Section 34 IPC, came to be registered against the appellants.
4. SI Dharampal, the investigator after the completion of inquest proceedings, kept the body of the deceased Kunti @ Ram Karan in the mortuary for conducting an autopsy on the next day. On 07.12.2014, an autopsy of the body of the deceased was conducted and thereafter, the body was handed over to the relatives of the deceased for performing his last right.
5. During the investigation, the scene of the crime was visited and photographs of the same were also obtained. The investigator lifted the blood from the scene of the crime, besides taking into possession a piece of bangle and some 4 hair sustained with blood. A pair of blood-stained chappals lying at a distance of 10 feet from the scene of the crime was also taken into possession after being packed in a cloth parcel and sealed with seal impression "M". Thereafter, the investigator searched appellants/accused persons in the illqua and as a result, appellants Shiv Kumar @ Monu and Hans Raj @ Sonu were apprehended from the nearby forest, whereas appellant Kamla Devi was found at home and all the three were interrogated separately and on finding sufficient material against them they were arrested on 07.12.2014 at about 4:00 p.m. All three appellants were got medically examined at the Community Health Center, Nalagarh and were produced before the Court of Learned Chief Judicial Magistrate, Nalagarh for having custodial interrogation for five days which was accordingly granted. Thereafter, the custodial interrogation of appellants for five days more was also sought on 12.12.2014. During the investigation, a vehicle bearing registration No. HP- 12F-9513 alongwith its documents, used in the commission of crime was also taken into possession at the behest of Sh. Polu Lal.
6. On 12.12.2014, appellant Kamla Devi made a disclosure statement under Section 27 of the Indian Evidence Act (for short 'Act'), regarding the concealment of bamboo sticks in her house and the same was got recovered. The 5 investigator prepared the memo of nishandehi, and the site plan and also took into possession bamboo stick vide separate memo duly signed by witnesses Mohan Singh and Mansa Ram.
7. On 14.12.2014, appellant Hans Raj made a disclosure statement under Section 27 of the Act regarding the concealment of the axe used in committing the murder of Kunti @ Ram Karan in the bushes and the same was recovered from the bushes situated on the left side of the road. The investigator prepared an outline map of the axe and thereafter took it into possession. The site plan of the place of recovery of axe was also prepared. Appellant Layak Ram @ Lucky was an Army personal and he had fled from the scene of crime and joined his duty in Battalion 6 RR Jammu (Kupwara) from where he came to police station Nalagarh in pursuance of order of his Commanding Officer on 06.01.2015. He was interrogated and during custodial interrogation, he disclosed that he was at the scene of crime alongwith his associates and had fled from the spot of occurrence after the incident and he was arrested on 09.01.2015. He gave nishandehi of the scene of the crime and in pursuance thereof, the memo of nishandehi and the site plan were prepared separately. During the investigation, the physical evidence collected from the scene of the crime and blood-stained clothes of deceased Kunti @ Ram Karan were sent to FSL Junga for chemical analysis and on chemical 6 analysis, human blood was detected from trousers, T-shirt, Vest, underwear and hair of Sh. Ram Karan @ Kunti. During the investigation, DNA report was also filed.
8. On completion of the investigation, the police report with relevant documents was presented before the Court of learned Additional Chief Judicial Magistrate, Nalagarh, who committed the case to the learned Sessions Judge, Solan and the learned Sessions Judge, Solan assigned the same to the Court of learned Additional Sessions Judge, Nalagarh.
9. On appearance of the appellants in the Court, copies of challan and other documents were supplied to the appellants free of costs and the charge was framed and put to them for the commission of offence punishable under Section 302 read with Section 34 IPC, to which they pleaded not guilty and claimed trial.
10. The prosecution, to substantiate its case, has examined as many as 19 witnesses. On the closure of prosecution evidence, the statements of appellants under Section 313 Cr.P.C. were recorded, to which they pleaded innocence. However, initially, the appellants intended to lead evidence in their defence, but later on they made statements that they did not want to lead any evidence in their defence. 7
11. The learned Additional Sessions Judge after evaluating the material on record, convicted and sentenced the appellants as aforesaid.
12. Aggrieved by the judgment of conviction and sentence passed by the learned Additional Sessions Judge, the appellants have filed the instant appeal.
13. It is vehemently argued by Shri Ajay Kochhar, learned Senior Advocate, that it is the case of the prosecution that the following recoveries had been effected:
1. On 7.12.2014 blood and soil sample were taken into possession in the presence of PW-2 Partap Singh and PW-3 Santokh Singh vide Memo Ext. PW-2/C. Chappal blood strained was taken into possession in the presence of aforesaid witnesses Ext PW-2/D. Broken bangles and hair were taken into possession in the presence of the aforesaid witness vide Memo Ext PW-
2/E.2.
2. On 10.12.2014 Shiv Kumar suffered a statement under Section 27 Ext. PW-14/A in the presence of HC Vijay and ASI Mohan Singh (PW-14) that he and Sonu had thrown an axe near the spot which he can get recovered and also got the spot identified vide Memo Ext. PW- 14/B but no recovery of Axe was affected.
3. On 12.12.2014 accused Kamla suffered a statement under Section 27 of the Evidence Act Ext. PW-5/A in the presence of PW-5 Constable Kapil Mohan and PW-14 ASI Mohan Singh and got recovered a Danda Ext. PC-4 in the presence of PW-6 Mansa Ram and PW-14 ASI 8 Mohan Singh and also got the spot identified vide Memo Ext. PW-5/C.
4. On 15.12.2014 accused Hans Raj suffered a disclosure statement under Section 27 of the Evidence Act Ext. PW-9/A in the presence of PW-9 Ram Swaroop and PW-14 ASI Mohan Singh and got the Axe Ext. PC-6 recovered in the presence of PW-8 Rama Nand and PW- 10 Darshan Lal vide Memo Ext. PW-8/A.
5. On 9.1.2015 accused Layak Ram made a disclosure statement under Section 27 of the Evidence Act Ext. PW-7/A that he can get recovered a phati (plank) in the presence of HHC Roshan (PW-7) HHG Sanjay and also got the spot identified in the presence of aforesaid witnesses vide spot identification Memo Ext. PW-7/B but no recovery was affected.
14. It is further argued by learned counsel for the appellants that the case of the prosecution rests upon the following evidence:-
Point No.1 The lodging of a statement under Section 154 Cr.P.C. Ext. PW-1/A stating therein the name of one Monu son of Pohu Lal and the alleged reason i.e. enmity of Monu and Kunti due to some argument in marriage 4-5 days ago before the incidence which according to the case of the prosecution was the motive.
Point No.2 Eye witness account Point No.3 Statements under Section 27 of the Evidence Act and recoveries of one Axe and Danda 9 Point No.4 Scientific evidence Point No.5 Opinion evidence
15. It is urged by the learned Senior Counsel for the appellants that the prosecution had miserably failed to prove even a single piece of evidence allegedly collected during the investigation of the case.
16. On the other hand, Shri I. N. Mehta, learned Senior Additional Advocate General has painstakingly referred to the oral and documentary evidence that has come on record and it is only after satisfying that the learned Court below has proceeded to convict the appellants.
We have heard learned counsel for the parties and have gone through the records of the case.
17. In order to appreciate the rival contention, one would have to first refer to the evidence that has come on record. However, before doing so, it needs to be noted that the learned Court below in its judgment has mainly referred to the examination-in-chief of the witnesses examined by the prosecution, without referring or making a little reference to the cross-examination, which was absolutely necessary to come to a just and proper conclusion, therefore, we would not 10 like to commit the same mistake and would refer to the evidence in detail.
18. PW1 Baljit Singh stated that on 06.12.2014, around 6:30 p.m., when he was coming back to his house after attending the marriage of his cousin and had reached Basot, he received a telephonic call from Santokh Singh (PW3), who informed him that somebody had given axe blow to Kunti @ Ram Karan. On this, he had made a telephonic call to Sonu (accused) and asked him about the person, who had given an axe blow to Kunti and he had told me that he was in his in- law's house and was not knowing about the name of the attacker and further said "Jisne Mari Hogi Mar Di Hogi". Thereafter, he rushed to village Dhana, where he came to know that Kunti had been shifted to CHC Nalagarh. He had seen in the hospital that Kunti was on a ventilator at that time and he had also seen that there was a cut on the back side of his skull and another cut injury on his chest. Before his arrival in the hospital Kunti was declared dead. He further stated that police had recorded his statement under Section 154 Cr.P.C. Ext. PW-1/A, which bears his signature. He lastly deposed that the persons gathered outside the hospital were talking that there was an altercation between Monu and Kunti. 11
19. On being cross-examined, he stated that a telephonic call was made by him to Sonu son of Pohu Ram, and had identified him in the court. Deceased Kunti was known to him about one and half years before his death and he was also his friend. However, he denied having personal knowledge about the altercation between Monu and Kunti. He denied the suggestion that no cut injury was seen by him on the person of the deceased either on the head or on the chest. He denied the suggestion that he had not disclosed to the police about the aforesaid injury seen by him on the person of the deceased. However, when confronted with the statement Ext.PW-1/A wherein it was not so recorded. He denied the suggestion that Santokh Singh had not made any telephonic call to him.
20. PW2 Pratap Singh stated that he was running a vegetable and Karyana shop at village Dhahna and the same has been taken by him on rent from Sita Ram. On 06.12.2014, when he was present in his shop after 6:00 p.m., he heard a noise and thereafter put the shutter and left the shop. People had gathered outside the shop and were saying that somebody had quarrelled there. Even his customer had left the shop to see the occurrence. Nothing was seen by him on the spot. At this stage, he was declared hostile and permitted to be cross-examined by the prosecution.
12
21. On being cross-examined, he stated that he had seen the photograph of his shop which is Ext. PW-2/A and stated that he had not seen the person visible in photo Ext. PW-2/B outside his shop and appellants/accused Monu and Sonu present in the court were quarrelling with each other. He did not know if the appellants/accused Sonu and Monu had given axe blow on the person which is visible in the photograph Ext. PW-2/B and volunteered to state that he had not seen the occurrence. He did not know if the lady accused had also given stick blows to the injured and volunteered to state that he had not seen the occurrence. He denied the suggestion that he had seen the entire occurrence. He did not know if the injured was shifted from the spot to the hospital in an ambulance. He admitted that on the next day, he had come to know that one person had died in front of his shop. He was associated by the police in the investigation and admitted that the police had lifted blood and soil from the spot in his presence and the same was put in the matchbox and taken into possession vide memo Ext. PW-2/C. He identified the matchbox in which the blood and soil were put by the police and thereafter taken into possession vide memo Ext. PW-2/C. He admitted that the police had also lifted one pair of chappals from outside his shop and then put them inside a cloth parcel and was taken into possession vide memo Ext. 13 PW-2/D. He identified the chappal Ext. PB to be the same that had been taken into possession from the spot. He also admitted that the police had also lifted broken bangle and hair from the spot and the same was taken into possession vide memo Ext. PW-2/E. He identified the parcel Ext. PC, hair Ext. PC1, bangle piece Ext. PC2 and pieces of bangles Ext. PC3. He identified the Ext. PC1 to Ext. PC3. He further stated that the sample of seal was also retained by the police on a separate piece of cloth which was Ext. PW-2/F. He denied the suggestion that family members of the appellants had approached him and threatened him that in case he did not make a statement in favour of the appellants, then he would face the consequences. He further denied the suggestion that it was on account of the aforesaid threats hurled by the appellants that he was making a false statement in the court and had resiled from his earlier statement. He could not tell the duration of the fight that had allegedly taken place outside his shop as the same had not been seen by him.
22. PW3 Santokh Singh stated that he had come to his native place at village Sori-Rajputa from Panipat on 02.12.2014 and had gone to village Basot to attend of marriage of his friend Noni. The Baraat of his friend had left in the morning time around 9:00 a.m. for village Gurumajra. He along with Ramkaran @ Kunti had returned with the Baraat to 14 village Basot around 5:30 p.m. in a car which was hired for Baraat. When they were on the way to village Basot, a telephonic call was received by Ramkaran @ Kunti from Mahinder Pal and Ramkaran @ Kunti told him that they would alight from the said car at village Dhana near Dharamkanta. Accordingly, he along with Ramkaran @ Kunti had alighted from the said car near Dharamkanta around 6:00 p.m. and the car driver drove the vehicle towards Basot. When they had alighted from the car near Dharamkanta, all the appellants started quarrelling with him and Ramkaran @ Kunti and the appellant Shiv Kumar @ Monu gave an axe (Kulhari) blow on the head of Ramkaran @ Kunti, as a result whereof, he fell on the ground. Thereafter, appellant Sonu took the axe from appellant Monu and gave an axe blow to the chest of the deceased. After that, appellants Kamla and Lucky present today in the court started beating Ramkaran @ Kunti by giving him stick blows. The occurrence continued for about half an hour. On this the people gathered on the spot and due to the fear, the appellants left towards the forest side. From the forest, he made a telephone call to Baljit @ Babby (PW1) and informed him about the aforesaid occurrence. After that, he left for his house and the next morning, he came to know Ramkaran @ Kunti had died. He remained associated with the police during the investigation of this case on 07.12.2014 with 15 one Partap Singh, a vegetable seller and in their presence, the police had lifted blood in front of the shop and had also lifted hair, broken bangles, chappal and sealed the same in separate parcels. The blood sample was put inside a match box which was taken into possession vide memo Ext. PW-2/C, which bears his signature. The pair of chappals which was lifted from some distance was sealed in a parcel and the same was taken into possession vide memo Ext. PW-2/D, which was signed by him. He identified the pair of chappal Ext. PB1. The hair Ext. PC1, one bangle Ext. PC2 and broken bangles Ext. PC3 were also put inside a parcel and sealed on the spot which were taken into possession vide memo Ext. PW-2/E which was signed by him. The sample of seal 'M' was also taken on a separate piece of cloth Ext. PW-2/F. He also identified the Danda Ext. PC4, which was used by the appellant Lucky at the time of the commission of the offence. He identified the axe, which was used by the appellant's Shiv Kumar @ Monu and Hans Raj @ Sonu in the commission of the offence.
23. On being cross-examined, PW 3 stated that he had known Ramkaran @ Kunti for the last 6 months from the date of the incident. He admitted that his attendance was not marked where he was working and at the time of the incident it was slightly dark. Neither he nor Kunti had taken liquor in the marriage on the said day. He further deposed that when 16 they alighted from the car 2-3 persons were already there and he had not seen the appellants before the date of occurrence. He deposed that he had not suffered any injury during the aforesaid occurrence and had disclosed to the police about the incident of quarrel by the appellants and with Kunti. However, confronted with statement Mark-D1, wherein it was not so recorded, he is not in a position to tell the number of persons who had gathered at the time of occurrence or thereafter. He stated that the incident had taken place in front of the shop of Partap Singh (PW2) and he had a mobile at that time and he had not made any telephonic call to the police and stated that he did not have any number of the police. He had also not made any telephonic calls to the relatives of the deceased and volunteered to state that he did not have their numbers. He denied the suggestion that he had not informed the police about the making of a call by him to Baljeet, confronted with Mark-D1 wherein it was not so recorded. He had attended the cremation of the deceased Kunti. He denied the suggestion that the friends of the deceased Kunti had quarrelled with him near the cremation ground. He stated that he had gone to the police on 07.12.2014 at around 7:00-8:00 a.m. and remained with the police till evening. His statement was recorded by the police when he had gone to the police station around 9:00 a.m. and he also accompanied the police to the scene of the 17 crime. The police had not recorded his statement at the spot, but only his signatures were obtained by the police when the aforesaid articles were seized on the spot around 12:00 noon. He reached from the forest to his house around 12:00-1:00 night. He further stated that no effort had been made by him to inform the police about the occurrence from his home and volunteered to state that his phone had fallen. He stated that at that time his mother and brother were at home, and they did not have mobile phones with them. He stated that the police Station is at a distance of about 12-15 km from his house. He stated that he had disclosed to the police about his leaving towards the Jungle from the spot. However, confronted with statement Mark-D1 wherein it was not so recorded. He admitted that the aforesaid danda and axe Ext. PC4 and Ext. PC6 was available in the market. He denied the suggestion that neither the appellants had axe Ext. PC6 with them nor they were having danda Ext. PC4. He denied the suggestion that neither appellants were present on the spot nor they had given any axe and danda blows to deceased Ramkaran @ Kunti. He denied the suggestion that he was not even present on the spot at the time of occurrence and he had been introduced later on by the police at the instance of the complainant party. He further denied the suggestion that he 18 had also made a story of fleeing towards the forest and about the mobile phone having fallen there.
24. PW4 Ranjeet Singh stated that on 06.12.2014 when he had been attending the marriage of his brother-in-law at village Garamoda in Punjab, then he had received a telephonic call from Roda that Ramkaran @ Kunti had been beaten up by some persons and accordingly he asked Roda to shift Ramkaran @ Kunti to take him to some hospital as he had been attending marriage at that time and in the evening he came to know about the death of Ramkaran @ Kunti.
25. PW Mohinder Pal was given up on 31.05.2017 on the ground of being repetitive because the witness of the same facts Santokh Singh (PW3) had already been examined and also on the ground to avoid contradictions in the prosecution case.
26. PW5 C. Kapil Mohan stated that on 12.12.2014, he was posted as driver of the official vehicle of police station Nalagarh and on that day appellant Kamla had disclosed to the police that she could get the bamboo stick recovered from her house regarding which memo Ext. PW-5/A had been prepared and signed by him. Thereafter, appellant Kamla led the police party to her house, where he dropped the investigator, appellant Kamla and other police officials. On the 19 aforesaid day, time and place, Podu Lal had produced the documents i.e. RC, insurance, certificate of Alto Car bearing No. HP-12F-9513 before the investigator regarding which memo Ext. PW-5/B was prepared and signed by him. At this stage, he was declared hostile on the ground that he was not stating complete facts of the case and he was permitted to be cross-examined by the prosecution. On being cross-examined, he admitted that when appellant Kamla was leading the police party towards her house, she had also disclosed that she could show the place where on 06.12.2014, she along with appellants had given beating to deceased Kunti @ Ram Karan regarding which memo Ext. PW-5/C was prepared which contained his signature. He admitted that the documents of the aforesaid car were produced by one Poha Lal father of appellant Shiv Kumar and not by Podu Lal and he clarified that the statement made by him in the year 2014, therefore, could not exactly remember the name of Pohu Lal.
27. He was then cross-examined by the learned counsel of the appellants and he admitted that Police Station Nalagarh is situated in the Bazaar and he did not know the date when Kamla had been arrested by the investigator and the investigator had told him that at the time of associating him in the investigation that house of Kamla was to be visited by the police for effecting recovery of danda. He did not know 20 by whom memo Ext. PW-5/A was written as he was outside. He did not remember the time when they left the police station towards the house of Kamla and the time when they returned to the police station. He further admitted that no danda was recovered by the investigator in his presence and that Kamla had not made a disclosure statement Ext. PW-5/A in his presence.
28. PW6 Mansa Ram stated that he had retired from the government service in the year 1999 and never remained associated with the investigation of the present case. He stated that the police used to come to his shop and get my signature on the papers. At this stage, he was declared hostile and permitted to be cross-examined by the prosecution. In his cross-examination, he denied the suggestion that one Diwan Chand resident of village Dhana was the husband of the appellant Kamla. He denied that on 12.12.2014, Kamla disclosed to the police that she could get recovered one stick and got the same recovered in his presence. Volunteered to state that he had not seen the danda. He denied the suggestion that he had stated portions A to A of his statement Mark-X. He admitted his signature on memo Ext. PW-6/A. He denied the suggestion that Danda Ext. P2 was the same that had been recovered by the appellant Kamla. He admitted that he had put his signature on Ext. PW-6/A voluntarily. 21 Volunteered to state that he had put the signature on Ext. PW- 6/A in good faith and without going through the contents of the same as the police officials were known to him. He was not cross-examined by the learned counsel for the appellants.
29. PW7 Roshan Lal stated that, at the relevant time, he had been posted as HHC at Police Station Nalagarh in the year 2014 and remained associated during the investigation of the case. On 09.01.2015, appellant Layak Ram made a disclosure statement in the police station, Nalagarh that a wooden plank (Fatti) which was used by him in the commission of offence while beating Kunti had been thrown by him at the same place and he could get the same recovered. Thereafter, they left the police station for the spot with the investigator and driver of the vehicle and again stated that the appellant Layak Ram was also with them. On the spot, appellant Layak Ram had shown the place where he had thrown the wooden plank but the wooden plank was not found there. Appellant Layak Ram had also disclosed on the spot that in the said place he, Kamla and his brother had given beatings to Kunti regarding which memo Ext. PW-7/B was also prepared.
30. On being cross-examined, he stated that the investigator had also told him and other witnesses that the 22 wooden plank was to be got recovered by Layak Ram and for that purpose, they were to be associated as witnesses. He admitted that in Ext. PW-7/A, it was recorded by the investigator that Layak Ram had stated about the beating of Kunti. Then he was confronted with Ext. PW-7/A wherein it was not so recorded. He admitted that no reference qua the non- recovery of wooden plank in Ext. PW-7/A had been made. He further stated that the only document prepared on the spot was Ext. PW-7/B and no other document except PW-7/B was prepared on the spot. He did not know if the spot allegedly identified by appellant Layak Ram was visited by the investigator several times before 09.01.2015. He denied the suggestion that neither Layak Ram had made a disclosure statement Ext. PW-7/A nor had stated the contents of Ext. PW- 7/B.
31. PW 8 Rama Nand stated that he was an agriculturist and was a BDC member and in December 2014, he was telephonically called at Police Post Dabhota by Head Constable. When he reached there he was asked to sign some documents by the police and accordingly, he appended his signatures on the said documents. At this stage, he was declared hostile and permitted to be cross-examined by the prosecution. In cross-examination, he denied the suggestion that on 15.12.2014, appellant Hans Raj @ Sonu had made a 23 disclosure statement in his presence that he could get the axe recovered from the bushes which was used by them for the commission of the offence. He denied the suggestion that thereafter appellant Hans Raj led the police party and the witnesses to the spot and got the axe Ext. PC-6 recovered and also disclosed that the axe was used by them to beat Kunti. He denied the suggestion that the axe was sealed by the police in a parcel Ext. PC5 and thereafter sealed the same with seal 'S'. He denied the suggestion that he had made a statement to the police Mark-Y and denied portions A to A and B to B of statement Mark-Y. He admitted his signature on Ext. PW-8/A, Ext. PW-8/B sketch, Ext. PW-8/C i.e. a piece of cloth on which sample of seal was taken. However, he denied having appended signature on Ext. PW-8/A. He admitted that he had not been threatened by the police at the time when he had appended his signatures. However, he denied having deposed falsely.
32. PW-9 Ram Swaroop stated that when he visited police station Nalagarh, in December 2014, to lodge a missing report of his brother-in-law, the police had asked him to sign some documents and he had not gone through the said documents before signing the same. At this stage, he was declared hostile and permitted to be cross-examined by the prosecution. He denied the suggestion that he knew the 24 appellant Hans Raj and further denied that appellant Hans Raj had made a disclosure statement before the investigator and in their presence stating that the axe that had been used by him along with appellant Shiv Kumar while beating Kunti on 06.12.2014 and also got the axe recovered. He admitted his signatures on Ext. PW-9/A and stated that the same had not been read by him before signing the same. He admitted that the police had not put any pressure upon him before he signed the documents. He further deposed that he had appended his signature on the aforesaid document as he was under pressure due to the missing of his brother-in-law. He denied the suggestion that to save the appellants he was making false statement in the Court.
33. PW10 Darshan Pal stated that in December 2014, when he was working on the Dabhota barrier and was taken to the police post Dabhota and asked to sign some documents and accordingly, he appended his signatures. At this stage, he was declared hostile and permitted to be cross-examined by the prosecution. In cross-examination, he denied the suggestion that on 15.12.2014, appellant Hans Raj@Sonu had made a disclosure statement in his presence that he could get the axe recovered from the bushes which had been used by them for committing the offence. He further denied the suggestion that thereafter appellant Hans Raj led the police 25 party and the witnesses to the spot and got the axe Ext. PC-6 recovered and also disclosed that the said axe had been used by them for beating Kunti. He further denied the suggestion that thereafter the said axe was sealed by the police in a parcel Ext. PC5 and the same was sealed with seal 'S'. He denied the suggestion that he had made a statement to the police which is Mark-Y and having heard portions A to A and B to B of statement Mark-Z1 and stated that the same were not given by him to the police. He admitted his signatures on Ext. PW-8/A, Ext. PW-8/B sketch, Ext. PW-8/C i.e. a piece of cloth on which sample of seal was taken. However, he denied having appended signature on Ext. PW-8/A. He admitted that he was not threatened by the police at the time when he had appended his signatures.
34. PW 11 C. Praveen Kumar stated that he was posted as a CIPA operator at P.S. Nalagarh at the relevant time and on 06.12.2014, had typed FIR Ext. PW11/A and also had typed Ext. PW-11/B and issued CIPA certificate as Ext. PW11/C duly signed by him. In his cross-examination, he denied the suggestion that the aforesaid FIR, rapat and CIPA certificate were neither typed nor issued by him.
35. PW12 ASI Kamal Nain stated that in the year 2014, he had been posted as an investigator at Police Station 26 Nalagarh and from 03.12.2014 to 09.12.2014, he had also performed the duty of MHC as the then MHC was on leave at that time. On 07.12.2014, SI Dharam Pal had deposited three sealed parcels, each sealed with 3 seals impression of 'M' along with sample seal and thereafter he made an entry in the Malkhana register and deposited the same in the Malkhana. On 08.12.2014, SI Dharam Pal again handed over the viscera of deceased Ram Karan @ Kunti along with clothes in a sealed parcel sealed with seal impression 'CHNLG', regarding which he had made an entry in the Malkhana register and deposited the same in the Malkhana. On the return of the then MHC after availing leave on 10.12.2014, he had informed the MHC about the deposit of the aforesaid parcel and viscera in the Malkhana and the entries made in the Malkhana register. He had brought the original Malkhana register and the abstract of the same are Ext. PW-12/A (three leaves). On being cross- examined, he denied the suggestion that the aforesaid parcel of viscera was not handed over to him by the investigator nor he deposited the same in the Malkhana. He, however, admitted that the investigator had not recorded his statement on 7/8.12.2014 nor had obtained the copies of Malkhana register.
36. PW 13 Harvinder Singh stated that in the year 2014, he was posted as MHC in Police Station Nalagarh and 27 had brought the summoned record. On 12.12.2014, the then Additional SHO Dharam Pal had deposited one danda Ext. PC4 along with an Alto car bearing registration No. HP-12-E-9513 along with key with him regarding which he had made an entry in the Malkhana register at Sr. No.945 and the abstract was Ext. PW-13/A. On 15.12.2014, the aforesaid investigator had again deposited one sealed parcel sealed with three seals of 'S' stated to be containing an axe (Kulhari) along with a sample seal regarding which he had made an entry in the Malkhana register at Sr. No.948, abstract of which was Ext. PW-13/B. On 16.12.2014, danda and axe were taken out from the Malkhana at the request of the investigator as he wanted to take opinion qua the said weapons, regarding which he had made an entry in the Malkhana register at Sr. No.945 and 948 abstracts of which were Ext. PW-13/A and Ext. PW-13/B and on the same day, the said weapons of offence were again re- deposited by the investigator SI/SHO Dharam Pal with him with the direction to keep the same in the Malkhana regarding which he had made entry in the Malkhana register at Sr. No.945 and 948. On 19.12.2014, he sent all the aforesaid sealed parcels including the parcel containing the axe to FSL Junga through C. Ranjit Singh except Danda and he accordingly deposited the same at FSL Junga and on his return handed over the receipt to him. He further deposed that the 28 abstract of RC was Ext. PW-13/C and the same were correct as per the original. On being cross-examined, this witness stated that on the 12th, 15th and 16th of December, 2014, the investigator had not recorded his statement nor had taken any abstract of the aforesaid register. He stated that he had disclosed to the investigator about the deposit of case property on 18.12.2014. He admitted that danda had been deposited in an unsealed parcel. However, he denied the suggestion that no such parcels were deposited with him nor he had made an entry in the relevant register.
37. PW 14 ASI Mohan Singh Stated that on 10.12.2014, appellant Shiv Kumar had made a disclosure statement in his presence and in the presence of HC Vijay Kumar that he could get recovered one axe used for the commission of the offence and also identify the spot, based on which memo Ex.PW14/A was prepared and duly signed by him and also by HC Vijay Kumar. Appellant Shiv Kumar had also appended his signatures on the memo and thereafter, they left for the spot. The place was identified but no axe was recovered. Memo of identification of the spot was prepared vide Ex.PW14/B which was signed by him and Vijay Kumar and also by the appellant Shiv Kumar.
29
38. On 12.12.2014, appellant Kamla in his presence and in the presence of C. Kapil made a disclosure statement that she could get recovered a danda and also identify the spot, based on which, memo Ex.PW5/A was prepared and the same was signed by him, C. Kapil and appellant Kamla also appended her thumb impression. Thereafter, they had gone to the spot. The appellant Kamla identified the spot vide memo Ex.PW5/C and got recovered Danda from her house lying behind the heap of bricks. Danda was taken into possession vide memo Ex.PW6/A and signed by him as well as by witness Mansa Ram and appellant Kamla appended her thumb impression. On the same day, vide memo Ex.PWS/D Poha Lal had produced vehicle No. HP-12F-9513 along with documents which was signed by him as well as C. Kapil Mohan.
39. On 15.12.2014, appellant Hans Raj had made a disclosure statement in his presence that he could get recovered one axe from bushes which fact is within his knowledge only. A memo in this regard Ex.PW9/A was prepared and signed by him as well as witness Ram Swarup and by the appellant Hans Raj. On 15.12.2014, the appellant Hans Raj identified the spot regarding which memo Ex.PW14/C was prepared which was signed by him and attested by I.O. Dharampal. On being cross-examined, the witness admitted that the Police Station, Nalagarh is situated in thickly 30 populated area having residential and non-residential premises. He could not tell whether any independent witness had been summoned on 10.12.2014, 12.12.2014, 14.12.2014 and 15.12.2014 and volunteered to state that the I.O. could tell it. He stated that at the time of associating him as a witness, I.O. had disclosed that the statements of the appellants were to be written qua recovery of axe and identification of spot. He admitted that he had disclosed in his statement recorded under Section 161 Cr.P.C. that appellant Hans Raj had disclosed that he alongwith Sonu, Kamla and Layak Ram had thrown the axe near the spot which fact was not recorded in the statement recorded under Section 27 of the Act Ex.PW14/A. He further stated that the search for the axe was made on 10.12.2014 nearby the spot but it could not be found and only one appellant was with them on that day. He admitted that he had gone to the spot where the incident had taken place on 7/8-12-2014 alongwith the I.O. He further stated that the spot which was allegedly got identified on 10.12.2014, 12.12.2014 and 15.12.2014 was within their knowledge prior to the dates when it was allegedly got identified. He further stated that the I.O. had disclosed to him at the time of associating him that the statement of appellant Kamla Devi was to be written qua recovery of danda and identification of spot. He further admitted that the house from 31 where the danda was recovered was under construction. He further admitted that the danda like Ex.PC-4 are commonly available and also admitted that the danda after recovery was not sealed. He further stated that on the day when appellant Hans Raj had made a disclosure statement, no independent witness was present at the police station. I.O. had disclosed to him at the time of associating that the statement of appellant Hans Raj is to be written qua recovery of axe and identification of spot. He admitted that the disclosure statement given by the appellant Hans Raj was contrary to the disclosure statement given by appellant Shiv Kumar qua effecting recovery of axe. He admitted that the axe was not got recovered on the same day when disclosure statement was written.
40. PW15 Krishan Chand stated that on 07.12.2014, the dead body of Ram Karan was handed over to Surjeet Singh in his presence as well as in the presence of Ram Pal vide memo Ext. PW15/A, which was signed by him as well as Rampal and even Surjeet Singh, cousin of the deceased had also appended his signature.
41. PW16 C. Ranjeet Singh stated that on 09.12.2014, MHC Harvinder Kumar had handed over to him 12 sealed parcels alongwith documents pertaining to the case vide RC 32 No. 249/14 and he had deposited the same at FSL on the same day and on his return, he handed over the receipt to MHC. On being cross-examined, he stated that his statement had been recorded by the I.O. on the same day when he had deposited the parcel at FSL, Junga. He denied the suggestion that neither he had taken the parcel from MHC nor deposited the same at FSL, Junga.
42. PW17 Dharam Pal stated that on 06.12.2014 information was received at Police Station Nalagarh regarding a quarrel at some place. Thereafter, he went to the hospital along with HHG Ramesh Chand where he had recorded the statement of Baljeet Singh under Section 154 Cr.P.C. Ext. PW- 1/A, which was endorsed by him and sent through HHG Ramesh Chand to police station Nalagarh. Thereafter, he clicked the photographs of deceased Ram Karan @Kunti in the hospital Ext. PW-2/B and filled the forms 25:35 and 25:39 Ext. PW-17/A and Ext. PW-17/B, respectively and also made a request vide application Ext. PW-17/C to BMO, CHC Nalagarh for conducting the postmortem of the dead body of the deceased. The dead body of the deceased had been kept in the dead house. On 07.12.2014, he had clicked the photographs of the spot at village Dhana vide Ext. PW- 2/A (4 photographs). Thereafter, he took into possession blood stained pair of slipper Ext. PB1 from the spot and sealed it in a 33 parcel Ext. PB and same was sealed with three seals of seal impression "M" vide memo Ext. PW-2/D. He had also collected blood in front of the shop of Partap Singh and after drying the same, it was put inside a dibbie (small box) and the same was sealed with seal impression "M" and was taken into possession vide memo PW-2/C. He had also taken into possession blood- stained broken pair of bangles from the spot and had also taken into possession hair from the spot which was put in separate packets and thereafter the said packets marked by letters 'A' and 'B' were put inside the cloth parcel, which was sealed with seal "M" and was taken into possession vide memo Ext. PW-2/E. He thereafter identified all these parcels and stated that the sample seal that had been taken on a separate piece of cloth vide Ext. PW2/F and after use the same was handed over to Santokh Singh. After a brief interrogation of the appellants, they were arrested on 07.12.2014 and thereafter produced in the Court for remand.
43. On 10.12.2014, the appellant Shiv Kumar had made a disclosure statement Ext. PW14/A that he could get the axe recovered that had been thrown in the bushes and led the police party to the spot, but the axe could not be recovered regarding which memo Ext. PW-14/B was prepared. During the investigation, the statement of appellant Kamla was recorded under Section 27 of the Act Ext. PW-5/A on 34 12.12.2014 and she disclosed that she could get the danda recovered, which was used by her in the commission of the offence. Thereafter, appellant Kamla first led the police party to the spot where she identified the place of occurrence regarding which memo Ext. PW-5/C was prepared. Thereafter, she led the police party to her house and got Danda recovered from the under-construction house which was adjoining to the wall and the same was taken into possession vide memo Ext. PW-6/A. He identified the Danda Ext. PC4 that had been recovered by the aforesaid appellant. The spot was also photographed vide Ext. PW-17/D1 and Ext. PW-17/D2.
44. On the same day, i.e. on 12.12.2014, Pohu Lal father of the appellant Shiv Kumar had produced a car bearing registration HP-12F-9513 along with its documents which were taken into possession vide memo Ext. PW-5/B. He further stated that it had come in the investigation, that the said car was used by the appellants in the commission of offence. On 14.12.2014, appellant Hans Raj @ Sonu had made a disclosure statement Ext. PW-9/A, disclosing that he had concealed the axe (Kulhari) having been used by him in the commission of offence and he could get the same recovered. On 15.12.2014, aforesaid appellant led the police party to the place where the said axe had been concealed and got the same recovered, which was taken into possession vide memo Ext. PW-8/A. The 35 photographs of the axe were clicked vide Ext. PW-17/D3 to Ext. PW-17/D6 and thereafter the sketch of the axe was prepared vide Ext. PW-8/B. He identified the axe in the court which was Ext. PC6. He further deposed that on 15.12.2014, appellant Hans Raj @ Sonu had led the police party to the spot where the occurrence dated 06.12.2014 had taken place and identified the spot regarding which memo Ext. PW-14/C was prepared. On 09.01.2015, appellant Layak Ram had made a disclosure statement Ext. PW-7/A, disclosing that he could get recovered fatti (small plank) used in the commission of the offence and could also identify the spot. Thereafter, aforesaid appellant led the police party to the spot and got identified the spot. However, he could not get the fatti recovered regarding which memo Ext. PW-7/B was prepared. During the investigation, he had also prepared the spot maps Ext. PW- 17/E1 to Ext. PW-17/E4 by visiting different places. He further stated that he recorded the statements of witnesses as per their versions. Statement of Partap Singh earlier marked as Mark-P now Ext. PW-17/F, statement of Mansa Ram earlier marked as Mark-X now Ext. PW-17/G, statement of Ram Swaroop earlier marked as Mark-Z now Ext. PW-17/H, statement of Rama Nand earlier marked as Mark-Y now Ext. PW-17/J and statement of Darshan Lal earlier marked as Mark- Z1 now Ext. PW-17/K as per their versions. Postmortem of the 36 deceased was also conducted. The FSL report Ext. PW-17/S1 and Ext. PW-17/S2 were also obtained. The certificate qua the photographs was also taken vide Ext. PW-17/L issued by Inspector Kshama Dutt whose signature was identified by him. He further stated that he identified the all appellants present in the Court. Lastly, he stated that on the completion of the investigation, he had handed over the case file to Inspector Kshama Dutt who prepared challan in this case and thereafter supplementary challan after receipt of the FSL report Ext. PW- 17/S3 was also presented in the Court.
45. On being cross-examined, the witness stated that the police party had reached the spot at around 07.12.2014 around 8:30 a.m. and left the spot for the police station around 4:30 p.m. Baljeet Singh who had made a statement under section 154 Cr.P.C. had disclosed that he had received the information through Santokh Singh qua the occurrence. Santokh Singh met him on the spot on 07.12.2014. Santokh Singh was not called but he was already on the spot and his statement was also recorded on the aforesaid day on the spot. His statement was recorded after effecting recovery on the spot to which he was also a witness. In his statement recorded under Section 161 Cr.P.C Mark-D1, it had not come that he had made a call to Baljeet qua the occurrence. About 2-3 hours were spent for the recovery on the spot. Santokh Singh had 37 not made any statement on the aforesaid day before him that the appellants had also quarrelled with him. He further admitted that there was no shop of Ram Partap on the spot. He further stated that he had not asked Santokh Singh as to why he had not reported the matter to the police immediately after seeing the occurrence. Santokh Singh had not disclosed to him that his mobile had also fallen when he was fleeing towards the jungle. As per his investigation, Mahinder Pal was an eye witness and he had recorded the statement as per his version and as per his statement Khukhri was in the hand of the appellant Lucky, whereas Monu had assaulted the deceased with bricks. The statement of Mahinder Pal Ext. DA was recorded by him as per his version. He further deposed that none of the appellants had made a statement about the use of khukhri or bricks or about the recovery of the same. He further deposed that he had visited the spot on 10.12.2014, 12.12.2014, 14.12.2014 and 09.01.2015. He had already visited the spot earlier on 02.12.2014. Volunteered to state that he had visited the spot again and again at the instances of the appellants. He admitted there are 4 to 5 shops near the police station and he had not called any shopkeeper while recording the statements of the appellants on different dates. He admitted that appellant Layak Ram had not got anything recovered and Ext. PW-14/A was prepared when appellant 38 Hans Raj was also there. The appellant Hans Raj had not made any disclosure statement on the aforesaid day. The spots which were visited on 10.12.2014 and 15.12.2014 were different and were at a distance of about 3 km. He admitted that the place from where the danda was recovered was open and further admitted that the place from where the axe was recovered was also open. He further admitted that in the photograph Ext. DB, date in circles X1 and X2 is mentioned as 10.01.2015, whereas in Ext. PW-7/A on the same place, the same is mentioned as 09.01.2015. He denied having carried out any tampering in documents and denied other suggestions as put by the prosecution.
46. PW18 Dr. Ajay Sharma stated that on 07.12.2014, he had conducted the postmortem of Ram Karan @ Kunti and thereafter issued a postmortem report Ext. PW-18/A containing his signature. The cause of death was head injury and hemorrhage of ruptured spleen leading to shock and cause death. The probable duration between the injury and death was immediate few minutes and the duration between death and postmortem was 12 to 24 hours. He had seen the axe through document visualizer and stated that the injury found on the deceased Kunti could have been caused by the said axe Ext. P6. The viscera of the deceased were also sealed in five jars and the same were sealed with seal impression 39 "CHNLG" each. The sample of seal was also taken on a separate piece of cloth which is Ext. PW-18/B and signed by him. In his cross-examination, he stated that he could not state if the aforesaid axe was shown to him at any time during the investigation of this case and volunteered to state that it was due to a time gap of 4 to 5 years of conducting the postmortem. He admitted that in case any weapon was shown to the Medical Officer during the investigation for opinion, then definitely Medical officer makes reference to the same in his report. He further stated that it could not be said with certainty that the aforesaid injuries could be caused only with the aforesaid axe, but volunteered to state that the injuries could be caused with a sharp-edged weapon like an axe shown to him. He further admitted that skin and subcutaneous tissue lie over the bony platform of the skull and in scalp laceration wound can resemble an incised wound because when a blow is given with a blunt weapon it clearly splits the skin/tissue against the bony part. Self stated that in this case, he had mentioned that wounds were incised. He admitted that to distinguish this type of wound, the distinguishing feature will be that hair bulbs or skin tissues will be crushed in case the injuries have been caused by a blunt weapon and it will be clearly cut and the margin will be clear in case it is given with sharp-edged weapon. He admitted that it had not been 40 mentioned in the postmortem report that hair bulbs/skin tissues were found crushed or clear-cut. He admitted that bruises and contusions were injuries which could be caused even by fall or by crushing or compression. He admitted that ecchymosis makes its appearance over the seat of injury in one or two hours after the injury. He also admitted that it is not always necessary that the shape and size of ecchymosis may give no indication as to the shape or size of the object causing it. However, denied the suggestion that his finding in the postmortem report had been given only to support the case of the prosecution.
47. PW19 Naseeb Singh Patial, Scientific Officer, FSL, Junga, stated that he had examined one sealed parcel which was received from the Biology and Serology Division on 31.12.2014. The seals on the parcel were intact.
Parcel:10: Sealed with three seals of 'M' and two seals of Biology and Serology Division. It contained Ext. E/10a and E/10B.
Ext. E/10a: A piece of red and white coloured bangle and hair like strands were found packed in a piece of paper.
Ext. E/10b: 10 pieces of red and white coloured bangle and hair like strands were found packed in a piece of paper. The aforementioned exhibits were examined physically and microscopically in the laboratory 41
48. The result of the examination was as under:-
"A piece of bangle marked as Ext. E/10a was similar to the pieces of bangle marked as Ext. E/10b".
49. He had issued report Ext.PW19/A containing his signatures. In cross-examination, he denied the suggestion that all types of bangles were similar. He further denied the suggestion that he had not received the aforesaid parcel for examination and lastly denied the suggestion that he had prepared the false report.
This in entirety is the evidence led by the prosecution.
50. Now we shall proceed to deal with the point-wise submissions.
Point No.1 The lodging of a statement under Section 154 Cr.P.C. Ext. PW-1/A stating therein the name of one Monu son of Pohu Lal and the alleged reason i.e. enmity of Monu and Kunti due to some argument in a marriage 4-5 days ago before the incidence which according to the case of the prosecution was the motive.
51. It is contended by Shri Ajay Kochhar, learned Senior Advocate that the prosecution has miserably failed to prove that PW1 Baljeet Singh had, in fact, made a statement naming there Monu son of Pohu Lal or the alleged enmity. We find from the record that this witness Baljeet Singh (PW1) was 42 not a hostile witness, but then in his entire examination-in- chief, he neither stated the name of Monu nor even stated about the alleged enmity as was otherwise written in Ext.PW1/A. He simply stated that he had been informed by Santokh Singh that somebody had given an axe blow to the deceased. Nowhere in his deposition claimed that either Santokh Singh had disclosed to him that Monu son of Pohu Lal and his accompanying co-accused/appellants had beaten the deceased or that there was enmity between Monu and the deceased as claimed by the prosecution to have been disclosed by Baljeet Singh at the time of recording his statement ex.PW1/A, based on which FIR was registered. Further, it would be noticed that Santokh Singh has also never claimed during the investigation of the case that he had called Baljeet Singh (PW1) and had disclosed any fact to him as is sought to be claimed by the prosecution. As a matter of fact, PW17 Investigating Officer has categorically admitted in his cross-examination that no such statement was ever given by Ranjeet Singh (PW4) during the course of investigation. The relevant portion of his statement is reproduced below:-
"In his statement recorded under Section 161 Cr.P.C. Mark D-1, it had not come that he had made a call to Baljeet qua the occurrence."43
52. Furthermore, there was no factual foundation led by the prosecution to prove that there indeed was a quarrel and if so the reason thereof, after all, normally there has to be a cause or reason for a quarrel and the same principles would equally apply to a physical fight, which may eventually ensue on account of quarrel.
Point No.2 Eye witness account
53. It is vehemently argued by the learned Senior Counsel for the appellants that the alleged incident had taken place in bazaar where a large number of persons were present and gathered, but the prosecution chose to record the statements of only three witnesses claiming to be the eyewitnesses i.e. PW2 Pratap Singh, PW3 Santokh Singh and one Mahinder Pal, who was given up by the prosecution. We have gone through the testimony of PW2 Pratap Singh and find that he has not at all supported the case of the prosecution that the appellants had given an axe injury or caused any other type of injuries to the deceased. Since the incident had taken place right outside his shop, he would have been the best witness to tell the court about the assailants but then he has not identified any of the assailants to be involved in the alleged incident.
44
54. Likewise, we have gone through the statement of PW3 Santokh Singh whose statement has not only been contradicted by the witnesses but his conduct and version put forth make his statement unreliable for the following reasons:-
i) Admittedly the case of the prosecution that incident is dated 6.12.2014 but in his statement, he has stated the incident to be of 2.12.2014 which was never the case of the prosecution. Interestingly he is also not a hostile witness and no explanation has been placed on record by the prosecution for not declaring him hostile and believing his version that the incident is of 2.12.2014. The relevant portion of his statement is on pages 4, 3rd and 4th line where he has claimed so. The relevant extract is reproduced herein below:-
"On 2.12.2014, I had gone to my native place at Village Sorirajputa from Panipat. On 2.12.2014 I had gone to village Dasot to attend the marriage of my friend Noni............ I along with Ram Karan @ Kunti had returned with Barat to Village Basot around 5.30 P.M. in a car. When we were......
ii) His unnatural conduct of not informing the police even though he was having a Mobile and enough opportunity otherwise to inform the police.
iii) His unnatural conduct of running towards the forest side which was otherwise an improvement in his statement even though number of people gathered there.45
(i) In the Statement of PW3 Santokh Singh, the date of the incident is mentioned as 02.12.2014
55. As per the admitted case of the prosecution, the incident took place on 06.12.2014 but the witness in his statement has categoric that the incident took place on 02.122014, which is not even the case of the prosecution. This assumes importance because he is not a hostile witness nor has any explanation been placed on record by the prosecution for not declaring him hostile and believing his version that the incident is of 02.12.2014. It is not once, but twice but through out he claims the date of the incident on 02.12.2014.
(ii) Unnatural conduct of PW3 Santokh Singh by not informing the police.
56. We find his conduct to be unnatural of not informing the police even though he had a mobile and enough opportunity otherwise to inform the police. Given the background, this witness specifically states that the accused persons had started quarrelling with him also and yet he would remain mum and not inform the police.
(iii) Unnatural conduct of PW3 Santokh Singh by running towards the forest
57. We further find his conduct to be unnatural, when he claimed to have run towards the forest side, which is not only an improvement in his statement initially given to the 46 police. But we wonder why he runs towards the forest even though several people had already gathered there. Why this assumes importance is that this witness has not stated that he had run towards the forest due to fear of the accused persons and had tried to introduce this fact for the first time in the Court for which he was duly confronted as would be evident from the statement, the relevant portion whereof reads as under:-
"I had disclosed to the police about my leaving toward the jungle from the spot. Confronted with statement Mark D-1 where it is not so recorded." PW17 also stated this fact on page 36, Santokh Singh has not disclosed before me that mobile had also fallen when he was fleeing towards the jungle."
(iv) Unnatural conduct of leaving the injured in the lurch
58. It has come on record that the deceased was a friend of this witness, therefore, it appears so unnatural and unbelievable that a close friend of the deceased would run away to the forest leaving his friend in injured condition, that too, without suffering even a scratch and would not even take him to the hospital for medical aid and would also not made any endeavour to save him or to raise an alarm of such incident.
(v) Unnatural conduct in not information the police immediately 47
59. What further makes his conduct absolutely unnatural is not informing any person or police about the alleged incident after reaching his house at 12:00-1:00 a.m. at night.
(vi) Not informing the police of his own even on the next day
60. If that was not enough, this witness did not inform the police on the next day after coming to know about the death of his friend. He claimed to have gone to the police of his own at 7:00-8:00 a.m. and had recorded his statement at 9:00 a.m. but this was contradicted by PW17 Dharam Pal, I.O. of the case. PW3 Santokh Singh in his examination-in-chief stated that "I was having mobile at that time. I had not made any telephonic call to the police as I was not having any number of the police. Even I had not made any telephonic call to other relations of the deceased." Thereafter, PW3 Sanotkh stated in his examination-in-chief that "I had gone to the police on 07.12.2014 around 7:00-8:00 a.m. and remained with the police till evening. The deceased was cremated on 07.12.2014. I had attended the cremation of deceased Kunti. My statement was recorded by the police when I went to police station at 9:00 a.m."
61. However, PW17 Dharam Pal, who was the I.O. of the case had a different tale to tell, which proved that what 48 was stated by PW3 Santokh Singh was nothing but a blatant lie, as he had neither gone to the police station nor the statement recorded at 9:00 a.m. as claimed by him. It shall be apt to reproduce relevant portion of the statement of PW17 Dharam Pal, which reads as under:-
"Santokh met me on the spot on 7.12.2014. Santokh was not called but he was already on the spot and his statement was also recorded on the aforesaid date on the spot. statement was His recorded after affecting recoveries on spot to which he was also a witness. In his statement recorded under Section 161 of Cr.P.C. Mark D-1 it had not come that he had made call to Baljeet qua the occurrence. About 2-3 hours were spent on spot." "I had not asked Santokh Singh as to why he has not reported the matter to the police immediately after seeing the occurrence. Santokh Singh has not disclosed before me that his Mobile has also fallen. when he was fleeing towards the Jungal."
62. It is clearly evident from the aforesaid statement that what PW3 Santokh Singh stated is a bundle of lies and cannot be considered to be a trustworthy witness as his conduct in not reporting the matter to the police immediately, if at all he had been at the scene of crime, makes his presence at the spot highly doubtful and he appears to have been introduced as a witness and was, in fact, not there at the alleged scene of occurrence. Had he been there, we see no reason why he had not disclosed this fact when he first met the police on the spot 49 and would not have made this statement after the recovery had been effected.
(vii)Introducing false fact of showing his presence
63. What again makes the testimony of this witness doubtful is when he introduces the fact to show his presence by stating that the appellants/accused persons had quarrelled with him, whereas it was never the case of the prosecution that any person had quarrelled and the relevant portion of his testimony reads as under:-
"When we had alighted from the car near
Dharamkanta all the accused persons started
quarrelling with me."
64. When his testimony is juxtapositioned vis-a-vis
the statement of the Investigating Officer (PW17), the same is contradicted and appears to be a blatant lie as Dharam Pal (PW17) has specifically stated that "Santokh had not made any statement on the aforesaid day before me that the accused persons also quarrelled with him."
(viii) Changing spot of incident
65. As per this witness, the occurrence took place in front of the shop of Ram Prakash, the relevant portion of his statement reads as under:-
50
"The incident has taken place in front of the shop of Ram Partap."
66. However, again the version put forth is falsified in the testimony of PW17 Dharam Pal, which categorically stated that there was no shop of Ram Prakash on the spot.
(ix)Different version from the other alleged eyewitness
67. The version put forth by PW3 Santokh Singh is different from the other alleged eyewitnesses casting serious doubt on his testimony and further casting serious doubt as to why Mahinder Pal, the alleged witness was given up. As per the version of this witness, accused Shiv Kumar @ Monu had given an axe blow and the accused Kamal and Lucky had given a stick blow to the deceased whereas as per the version put forth by Mahinder Pal was totally different as would be evident from the statement of PW17 Dharam Pal, which reads as under:-
"As per my investigation, Mohinder Pal was an eye witness. I had recorded his statement. As per his version and as per his statement Khukri was in the hands of accused Lucky and Monu had assaulted with brick. The statement of Mohinder Pal Ext. D-A was recorded by me. As per his version, none of the accused had made a statement qua the use of Khukri or Brick or about the recovery of the same."
(x) Giving a false explanation 51
68. What further creates doubt regarding the very presence and credibility of PW3 Santokh Singh is that when he claimed that his mobile phone had fallen down but when confronted with his conduct of not informing the police, then no such statement had been given by him before the police and this fact stands duly admitted by PW17 Dharam Pal in his statement when he states that PW3 Santokh Singh had never stated such fact to him.
(xi) Prosecution failed to prove that who were the assailants
69. It is argued by the learned Senior Counsel for the appellants that the prosecution has failed to prove any motive for the offence and the entire prosecution story rests upon the testimony of PW2 Pratap Singh and PW3 Santokh Singh and it has been established on record that PW2 Partap Singh had not identified the appellants to be the assailants, whereas PW3 Santokh Singh has identified the appellants for the first time in the Court. There is no explanation on record why the test identification parade was not conducted when admittedly PW3 Santokh Singh was also not knowing the appellants before the date of occurrence. We find merit in this contention because the incident alleged to have been taken place in the month of December at about 6:30 p.m. by which time, it would be dark as is otherwise admitted by PW3 Santokh Singh and once he 52 did not know the appellants before the date of occurrence, how, he identified them in the court makes his testimony doubtful. The relevant portion of his testimony reads as under:-
"At the time of the incident, there was slight dark."
"I had not seen the accused persons before the date of occurrence."
Point No.3 Statement under Section 27 of the Evidence Act and recoveries of one axe and danda
70. It is contended by the learned Senior Counsel for the appellants that as per the case of the prosecution, it was on 10.12.2014, that one of the appellants Shiv Kumar had made a disclosure statement under Section 27 of the Act Ext. PW14/A in the presence of HC Vijay Kumar and ASI Mohan Singh (PW14) that he and Sonu had thrown an axe near the spot which he could get recovered and also get the spot identified vide memo Ext. PW14/B, but admittedly no recovery of axe was effected, which makes the case of prosecution doubtful because HHC Vijay Kumar has not been examined by the prosecution and as observed above no recovery was effected pursuant to the statementExt. PW14/A.
71. Apart from the above, the statement itself being in the nature of confession is otherwise not admissible. 53 Moreover, it would be noticed that before associating PW14 ASI Mohan Singh as a marginal witness, it was already within the knowledge of the I.O. that what sought of statement was to be recorded before associating PW14 ASI Mohan Singh as a marginal witness, which is evident from the following statement:-
"at the time of associating me as a witness, the I.O. had disclosed that the statement of accused persons were to be written qua recovery of an axe and identification of spot."
72. Apart from the above, the so-called spot identification is of no help or assistance to the prosecution as was already in the knowledge of PW14 ASI Mohan Singh as well as I.O. before 10.12.2014, as is evident from the following abstracts of his deposition:-
"I had gone to the spot where the incident has taken place on 7-8.12.2014 alongwith the I.O. The spot which was allegedly identified on 10.12.2014, 12.12.2014 and 15.12.2014 was within our knowledge prior to the dates when it was allegedly got identified."
Statement of Kamla Devi under Section 27 of the Evidence Act of no avail.
73. It is urged that the prosecution has miserably failed to prove on record that on 12.12.2014, appellant Kamla Devi suffered a statement under Section 27 of the Evidence Act Ext. PW5/A in the presence of PW-5 C. Kapil Mohan and 54 PW-14 ASI Mohan Singh and got recovered danda Ext.PC-4 in the presence of PW-6 Mansa Ram and PW-14 ASI Mohan Singh and also got the spot identified vide memo Ext. PW5/C. It is urged that Ext. PW5/A is the alleged disclosure statement whereas PW5, who is a police official has admitted that Kamla Devi had not made a disclosure statement Ext. PW-5/A in his presence. Though PW-14 ASI Mohan Singh does claim that such statement was given in his presence but has been contradicted by PW5 C. Kapil Mohan. We find merit in such contention because even the learned Additional Advocate General has not been able to refute the factual matrix and moreover PW-5 C. Kapil Mohan has further gone to state that on 12.12.2014 when the I.O. had associated him, it was clearly disclosed to him by the I.O. that what statement of the accused was to be recorded.
74. In addition to the aforesaid, the witnesses to the recovery are PW-6 Mansa Ram and PW14 ASI Mohan Singh. PW6 Mansa Ram has not supported the case of the prosecution and has even been cross-examined by the State by suggesting that Kamla Devi had made a disclosure statement in his presence and got the danda recovered in his presence. Whereas, admittedly, PW6 Mansa Ram is not the witness to the disclosure statement. As regards PW14 ASI Mohan Singh, he has admitted that before writing the 55 disclosure statement Ext. PW5/A, I.O. had disclosed to him that the statement qua recovery of identification of spot is to be written. It shall be apt to reproduce the relevant portion of the statement, which reads as under:-
"Constable Kapil was present when accused Kamla made the disclosure statement, Ext. PW-5/A he was present even when Ext. PW-5/A was written. I.O. had disclosed to me at the time of associating me that the statement of accused Kamla Devi is to be written qua recovery of danda and identification of spot."
75. Not only this, the witness has further deposed qua the recovery in the same para and has admitted that "the house from where the danda was recovered was under
construction. It is correct that danda like Ext.PC-4 are commonly available and the danda after recovery was not sealed."
76. If that was not sufficient, we noticed that there was no explanation offered by the prosecution as to why the danda was not sealed bearing in mind that the recovery has admittedly been effected from an open place.
The prosecution could not prove on record that on 15.12.2014 accused Hans Raj suffered a disclosure statement under Section 27 of the Evidence Act.
77. It is strongly urged by the learned Senior Counsel for the appellant that the prosecution has miserably failed to 56 prove on record that on 15.12.2014, the appellant Hans Raj suffered a disclosure statement under Section 27 of the Act Ext. PW9/A in the presence of PW9 Ram Swaroop and PW14 ASI Mohan Singh and got the axe Ext.PC-6 recovered in the presence of PW8 Ranjeet Singh and PW10 Darshan Lal vide memo Ext. PW8/A.
78. We have considered the aforesaid contention and find that both the witnesses to the recovery of the axe i.e. PW8 Rama Nand and PW10 Darshan Lal, have not at all supported the case of the prosecution. As regards the statement under Section 27 of the Act, here again, PW9 Ram Swaroop has not supported the case of the prosecution that any such statement as a matter of fact was given.
79. PW14 ASI Mohan Singh though has supported the case of the prosecution, but then even if his entire statement is seen, then the disclosure statement again has not been proved. As per the admitted case of the prosecution disclosure statement Ext.PW9/A was recorded on 14.12.2014 and the recovery was effected on 15.12.2014. But then PW-14 ASI Mohan Singh in his examination-in-chief has stated that the appellant Hans Raj had made a statement on 15.12.2014 (not 14.12.2014), as is the prosecution case and has in his cross- examination admitted that the axe was recovered on the 57 same day when the disclosure statement was written, as is evident from the relevant portion of his statement, which reads as under:-
"On 15.12.2014 accused Hans Raj present in the court made a disclosure statement in my presence that he can get recovered one axe from the bushes."
And thereafter he stated as under:-
"the axe was not got recovered on the same day when disclosure statement was written."
80. The prosecution has miserably failed to reconcile these two versions given by PW14 ASI Mohan Singh in his statement because evidently PW9/A is of 14.12.2014, whereas according to PW14 ASI Mohan Singh, the statement was made on 15.12.2014. Secondly, if it was on 15.12.2014 as stated by PW14 ASI Mohan Singh and the recovery has not been effected on the same day as claimed by him, then it should have been on 16.12.2014, whereas the recovery memo is dated 15.12.2014.
81. Furthermore, the prosecution has also not placed on record any explanation as to why time and again the disclosure statements, qua recovery of axe, written on 10.12.2014 and 14.12.2014 of the two appellants, who admittedly, were together in the custody of the police and both these disclosure statements were otherwise contrary to 58 each other. This has been so stated even by PW14 ASI Mohan Singh, as would be evident from the relevant portion of his statement, which reads as under:-
"On the day when Hans Raj had made a disclosure statement no independent witness was present in the police station. I.O. had disclosed to me at the time of associating me that the statement of accused Hans Raj is to be written qua recovery of axe and identification of spot. It is correct that the disclosure statement given by accused Shiv Kumar qua effecting recovery of axe on 10.12.2014 when the statement of Shiv Kumar qua recovery of axe was written, accused Hans Raj was in police custody. The axe was not got recovered on the same day when disclosure statement was written. I cannot tell the duration of investigation on that day when disclosure statement of Hans Raj was written. Even I cannot tell what questions were asked by the
1.O. and what answers were given by the accused."
The prosecution could not prove that on 09.01.2015 accused Layak Ram made a disclosure statement under Section 27 of the Evidence Act Ext.PW7/A.
82. The prosecution could not prove that Layak Ram made a disclosure statement under Section 27 of the Act Ext.PW7/A that he could get recovered fatti (plank) in the presence of HHC Roshan Lal (PW7), HHG Sanjay and also got the spot identified in the presence of the aforesaid witnesses vide spot identification memo Ext. PW7/B. We have considered the submissions and again find merit in the same because 59 admittedly no recovery was effected based on the aforesaid statement.
83. As regards the spot inspection, a memo is otherwise of no avail as the prosecution witnesses have admitted that the spot was within the very knowledge before the date of the alleged spot identification. Moreover, we find that while doing so tampering had been done to show that the statement was allegedly made on 09.01.2015 as the date shown in the record is otherwise 10.01.2015. This fact has been duly admitted by the I.O. when he states as under:-
"Ext. D/B is the photocopy of Ext.PW7/A. It is correct that in the photocopy Ext. D/B the date in circles X-1 and X-2 is mentioned as 10.012015 whereas in Ext.PW- 7/A at the same place, the same is mentioned as 09.01.2015."
Point No.4 Scientific Evidence
84. It is vehemently argued that the report of the FSL does not in any manner connect any of the appellants with the commission of the alleged offence. The report of the FSL shows that pieces of bangles collected from the spot were similar to the bangles which were sent for comparison but then this report is of no avail or help to the case of the prosecution as there is no evidence whatsoever led by the 60 prosecution on record to prove as to whose bangles were sent for comparison.
Point No.5 Opinion Evidence
85. Learned Senior Counsel for the appellant would then argue that even the opinion evidence does not in any manner connect the appellants with the commission of the offence. It is argued that the prosecution has though examined PW18 Dr Ajay Sharma, who conducted the postmortem of the deceased to prove that the injuries were caused by the danda and axe but neither these so-called weapons of offence have not been shown to PW18 Dr. Ajay Sharma either during the investigation of the case or at the time of his examination. We have been taken through the record and find that the axe was or as a matter of fact, not shown to the witness during the investigation of the case and a futile attempt was indeed made by the prosecution to obtain an opinion that the injuries could have been caused with the axe Ext.P6 when a suggestion to this effect was made to PW18 Dr. Ajay Sharma in his examination-in-chief. However, in cross- examination, the witness admitted that it could not be said with certainty that injuries could be caused only with the aforesaid axe and further stated that scalp laceration wounds can resemble incised wounds because when a blow is given 61 with a blunt weapon, it clearly splits the skin/tissue against the bony part and has also admitted that the distinguishing features would be noticed is that her bulbs or skin tissues are crushed and it will be clearly cut and the margin will be clear in case it is given with sharp-edged weapon. He has categorically admitted that it has not been mentioned in the postmortem report that hair bulbs or skin tissues were found crushed or clear-cut.
86. Once that is so, obviously, the evidence of the prosecution is clearly lacking to prove on record that the injuries found on the person of the deceased were caused by a sharp-edged weapon. This assumes greater importance given the fact that Mahinder Pal, who had given an entirely different version from the other so-called eyewitnesses has not been examined, even though his statement under Section 161 Cr.P.C. had been recorded. Unfortunately, all these factors have not been considered.
87. In view of the aforesaid discussion, the judgment of conviction and sentence, as passed by the learned Additional Session Judge, Nalagarh, being not legally sustainable, is set aside. Accordingly, the appellants are ordered to be released immediately, if not required in any 62 other case(s). The Registry is directed to prepare release warrants of the appellants.
88. In view of the provisions of Section 437A Cr.P.C., each of the appellants is directed to furnish personal bonds in the sum of Rs.50,000/- with one surety of the like amount to the satisfaction of the learned Registrar (Judicial) of this Court, which shall be effective for a period of six months with a stipulation that in an event of an SLP being filed against this judgment or on grant of the leave, the appellants on receipt of notice thereof shall appear before the Hon'ble Supreme Court.
89. The instant appeal is allowed. Pending application, if any, also stands disposed of.
KALYAN Digitally signed by KALYAN CHAND AWASTHI DN: C=IN, O=HIGH COURT OF HIMACHAL PRADESH, OU=HIGH COURT OF HIMACHAL PRADESH SHIMLA, Phone=068e8173504da3a6d6e56308707033e63c7253 (Tarlok Singh Chauhan) CHAND Judge b4e6eb0f2a8f0285cdb5737f49, PostalCode=171001, S=Himachal Pradesh, SERIALNUMBER=7fe19e609f07c9899a24f7f61744de9 a7a35cc62f67431d8415b71bf186fbd4f, CN=KALYAN CHAND AWASTHI AWASTHI Reason: I am approving this document Location:
Date: 2023-10-31 14:28:03 (Ranjan Sharma) 31.10.2023 Judge (sanjeev)