Himachal Pradesh High Court
State Of Himachal Pradesh vs Raj Kumar Alias Raju on 4 August, 2016
Bench: Rajiv Sharma, Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 456 of 2012 .
Judgment reserved on:30.06.2016
Date of Decision :04.08.2016
State of Himachal Pradesh ...Appellant
of
Versus
Raj Kumar alias Raju .....Respondent
Coram:
rt
The Hon'ble Mr. Justice Rajiv Sharma, Judge. The Hon'ble Mr. Justice Vivek Singh Thakur. Whether approved for reporting?1 ________.
For the appellant : Mr. Neeraj Sharma, Deputy Advocate General.
For the respondent : Mr. Satyen Vaidya, Senior Advocate, with Mr. Vivek Sharma, Advocate.
Vivek Singh Thakur
1. Aggrieved by the acquittal of respondent-accused vide judgment, dated 25.06.2012 passed by the learned Additional Sessions Judge, Shimla in Sessions Trial No. 6- Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 20:57:52 :::HCHP 2S/7 of 2010 in case FIR No. 197/2009, dated 28.11.2009, registered under Sections 201 and 302 of the Indian Penal .
Code in Police Station Theog, District Shimla, H.P. the State has preferred present appeal, with prayer to set aside impugned judgment and to convict respondent-accused of under Sections 201 and 302 of the Indian Penal Code.
2. We have heard counsel for parties and have gone through documents placed on record.
rt Learned Deputy
Advocate General for appellant-State has advanced
arguments that there is sufficient evidence on record to
prove guilt of respondent-accused under Sections 302 and 201 of the Indian Penal Code and prayed for allowing the appeal to punish respondent-accused under Sections 302 and 201 IPC whereas, Mr. Satyan Vaidya learned Senior counsel for respondent-accused has strenuously submitted that prosecution has failed to prove the case beyond reasonable doubt and there is no circumstance incriminating respondent-accused and has sought dismissal of appeal by affirming judgment of learned Sessions Judge, Shimla.
::: Downloaded on - 15/04/2017 20:57:52 :::HCHP 33. Briefly stated, facts of the case are that PW-1 Dharam Dass had made a statement under Section 154 .
Cr.PC on 28.11.2009 stating therein that his elder brother Duni Chand was serving as a labourer in PWD Department and he was informed by his younger brother Hari Dass on of 22.11.2009 at about 1.30 PM that Duni Chand had not returned home since Friday i.e. 20.11.2009. Thereupon he had immediately rt started for home from his duty and had reached there at 6.30 PM. In the meanwhile, his brother PW-3 Prem Lal had telephonically called him on the road where other people were also there. Prem Lal had informed him that dead body of Duni Chand is lying on the bank of Sanola khad. At the same time Ex. BDC Member Laiq Ram had also informed Parkash Kalia, Pradhan Gram Panchayat Barog about this. They went to khad where dead body of his brother Duni Chand was found lying on the bank of khad. They waited for police and after reaching police on spot, dead body was inspected and injuries on back side of head and scratches on other parts of body were found. As per him, during investigation of the matter on their own level, PW-5 Parkash Chand had informed him that on ::: Downloaded on - 15/04/2017 20:57:52 :::HCHP 4 20.11.2009 at about 10.00 PM when PW-5 Prakash Chand and Duni Chand were taking liquor by sitting on side of .
road, respondent Raj Kumar @ Raju had reached there who on offer of Duni Chand, had also consumed liquor by sitting with them. In the meanwhile, there was quarrel of between Duni Chand deceased and respondent Raj Kumar @ Raju respondent-accused had pulled down Duni Chand to khad and pushed on stoned. Upon this Duni Chand had fallen rt on stone and respondent had also beaten him with sticks/dandas and had laid down him on sandy bank of khad by dragging forcibly. Thereafter, respondent Raj Kumar @ Raju had threatened to kill PW-5 Prakash Chand in case of disclosure of this incident to any one. Prior to this incident Raj Kumar @ Raju had also beaten Duni Chand in his house and had threatened to see deceased. Upon this information, PW-1 Dharam Dass was sure that respondent Raj Kumar @ Raju had killed his brother Duni Chand by taking advantage of his intoxication.
4. Only eye witness and key witness in present case is PW-5 Prakash Chand who has claimed to had witnessed crime on the spot. PW-5 has stated that after working as ::: Downloaded on - 15/04/2017 20:57:52 :::HCHP 5 Carpenter in the house of one Rajinder Verma he and Rajinder Verma, had consumed small quantity of liquor .
before taking meal there. Thereafter at about 9.30 PM on the way to his house, deceased Duni Chand met him near Sanola pul and on asking of deceased Duni Chand he had of went to the shop of Dinesh alongwith deceased where he purchased beedi and match box and deceased Duni Chand had purchased two disposable glasses and one packet of rt Namkeen. Both of them sat in veranda of Lal Chand situated on the side of road and started consuming liquor brought by Duni Chand. After some time respondent Raj Kumar @ Raju had also come there to whom one peg was also offered by Duni Chand. As per this witness, all of them finished bottle consuming liquor in equal proportion and thereafter there were arguments between deceased Duni Chand and respondent Raj Kumar @ Raju. During these arguments respondent Raj Kumar @ Raju had slapped deceased Duni Chand. Respondent Raj Kumar @ Raj had not acceded to his requests to spare deceased and had pushed deceased downwards in the khad. In khad, respondent Raj Kumar @ Raju had given beatings to deceased with danda and had ::: Downloaded on - 15/04/2017 20:57:52 :::HCHP 6 dragged the deceased to the sandy bank to lay down him there. As per this witness he had gone down to the khad to .
save deceased from clutches of respondent Raj Kumar @ Raju but respondent had thrown deceased on stone and had given 2-3 blows of danda after pushing deceased Duni of Chand into khad. Thereafter, respondent Raj Kumar @ Raju had threatened this witness that disclosure of this incident to anyone will result the same fate to him as of deceased. It is rt further stated that during this time deceased was shouting "Raju Bhai Raju Bhai mat maar mat maar". He has stated that due to fear, he has not disclosed this incident to his family, brothers or villagers till 28.11.2009. On 28.11.2009, he disclosed entire happening to brothers of deceased when he was going to the house of deceased.
5. Statement of PW-5 Prakash Chand was also recorded under Section 164 Cr.PC before Magistrate on 01.12.2009. In this court, he has stated that he had disclosed this fact to Dharam Dass and Hari Dass, however, he had not mentioned this fact at the time of making statement before Magistrate. He has stated that from 21.11.2009 to 27.11.2009, he was at home and he had ::: Downloaded on - 15/04/2017 20:57:52 :::HCHP 7 come to know about death of Duni Chand after 2-3 days from the date of incident. He has stated that he had not .
attended funeral of deceased Duni Chand and could not go to pay condolence to family members of deceased out of fear.
He has four brothers. He has submitted that he has not of shared incident even with his wife or brothers with whom he has cordial relations. He has admitted that on 28.11.2009 also, there was fear in his mind but on that day he had made rt up his mind to disclose incident to brothers of deceased. He has admitted that even on that day he had not discussed anything with his wife when he was going to disclose this incident. He has further stated that he came to know lateron from people that dead body of deceased was found in khad.
He has also stated that he did not make any hue and cry at the time of incident and did not make any efforts to save deceased or to tell about the incident to relatives despite having mobile with him on that day and he did not try to inquire about deceased after the incident. He has stated that threatening were advanced by respondent after the incident and prior to that there was no advancement of any threat but he had not made any hue and cry before threat ::: Downloaded on - 15/04/2017 20:57:52 :::HCHP 8 and had left the spot immediately after threatening was advanced.
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6. PW-5 Parkash Chand is not a stranger to deceased Duni Chand or his brothers. They are closely related to each other. PW-9 Balak Ram has stated that deceased Duni of Chand was his cousin being son of his real maternal uncle (Mamma). PW-9 Balak Ram is son of real uncle of PW-5 Parkash Chand. rt
7. In these circumstances conduct of PW-5 Prakash Chand is unnatural and unbelievable that for 7-8 days he did not disclose the incident to anyone including his wife and real brothers with whom he was having cordial relations and further he had not even inquired about well being of deceased Duni Chand after the incident of beatings witnessed by him.
8. PW-5 Parkash Chand did not intervene in quarrel and did not try to save deceased, did not raise any alarm, did not try to collect people despite having mobile with him.
Further did not go back to spot to inquire about the fate of deceased and bothered to visit spot even on the next morning and did not inform brothers or other members of ::: Downloaded on - 15/04/2017 20:57:52 :::HCHP 9 family of deceased despite having relations with deceased and his brothers. No reasonable person in ordinary course .
will behave in such a manner particularly when victim was also closely related to him. It creates doubt on veracity of PW-5 Parkash Chand.
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9. PW-5 Prakash Chand has claimed that he had not attended funeral of deceased Duni Chand and had also not visited his family to pay condolence. Whereas PW-3 Prem Lal rt real brother of deceased has stated that PW-5 Parkash Chand was present at the time of funeral and had also come to pay condolence.
10. As per PW-5, Parkash Chand, he had disclosed the incident to PW-1 Dharam Dass in presence of Hari Dass but in his statement recorded under Section 161 Cr.PC, Ex.
PW-21/E he has stated that incident was disclosed by him in presence of Dharam Dass, Prem Lal and Gulab Singh whereas PW-1 Dharam Dass has stated that at the time of disclosure, he and PW-5 Parkash Chand were alone. It is also noticeable that in statement made before learned JMIC Theog under Section 164 Cr.PC, PW-5 had not disclosed ::: Downloaded on - 15/04/2017 20:57:52 :::HCHP 10 name of Dharam Dass as a person to whom he had disclosed the incident on 28.11.2009.
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11. Statement of PW-5 Parkash Chand that he had decided on his own to reveal the incident to brothers of deceased Duni Chand is also not beyond suspicion. As per of deposition of PW- 1 Dharam Dass in his statement under Section 154 Cr.PC and also statement of Investigating Officer PW-21 rt Khajana Ram, PW-5 Parkash Chand had revealed the incident on inquiry but not of his own.
Therefore, claim of PW-5 that he had revealed the incident to PW-1 Dharam Dass on his own is also shrouded with suspicion.
12. PW-9 Balak Ram who is cousin of Parkash Chand has stated that he had inquired from PW-5 Parkash Chand that whether he was involved in the offence in question to which Parkash Chand has replied negatively. He has further stated that necessity to ask this question had arisen because there was a talk in the village that deceased, respondent Raj Kumar @ Raju and Parkash Chand were seen drinking together.
::: Downloaded on - 15/04/2017 20:57:52 :::HCHP 1113. Prosecution has also relied upon PW-7 Asha Devi who has claimed that she had heard cry of deceased coming .
from road side "Raju Bhai, Raju Bhai mat maar mat maar".
PW-5 Rakesh Chand has also stated that at the time of incident deceased was saying "Raju Bhai mat maar mat of maar" (do not beat).
14. Statement of PW-5 Parkash Chand under Section 164 Cr.PC was recorded rt on 01.12.2009 and there is no mention of the fact in this statement that deceased was crying 'Raju Bhai, mat maar' whereas PW-7 Asha Devi has claimed that this fact was disclosed by her to complainant PW-1 Dharam Dass on 23.11.2009. PW-1 has stated that PW-7 Asha Devi had informed him also regarding hearing of cries on the night of incident. Dead body of deceased was found on 22.11.2009. But in the statement of PW-1 under Section 154 Cr.PC Ex. PW-2/A dated 28.11.2009, there is no mention of this fact. Even Parkash Chand has not stated so in his statement recorded under Section 164 Cr.PC on 01.12.209 before learned JMIC. According to PW-7 Asha Devi, she has disclosed this fact to police on 23.11.2009 or 24.11.2009, whereas FIR was registered on 28.11.2009, ::: Downloaded on - 15/04/2017 20:57:52 :::HCHP 12 therefore, there was no question of recording her statement by police on 23.11.2009 or 24.11.2009. From this, it .
appears that PW-7 was introduced to corroborate statement of PW-5 Parkash Chand.
15. Another piece of evidence relied upon by of prosecution against respondent is disclosure statement Ex.
PW-17/A made under Section 27 of Evidence Act by respondent leading to recovery of Danda Ex. P-4 on rt 30.11.2009. This recovery is also highly doubtful as the police and other villagers were visiting the spot frequently between 22.12.2009 to 27.11.2009 to lift body and also to lift blood and hair from the spot and to left blood stained stones and soils from spot in presence of PW-1 Dharam Dass, Gulab Singh and PW-3 Prem Lal. These visits are evident from Memo Ex. PW-1/B and Ex. PW-3/A. The place of incident was known to all and it has also come in statement of PW-8 Rajinder Verma that number of dandas including Ex. P-4 were lying on the spot in open. Therefore, danda Ex. P-4 was not concealed and hide by accused. If Ex. P-4 is lying on the spot then it was visible to all and bound to come in notice of every one or atleast some one.
::: Downloaded on - 15/04/2017 20:57:52 :::HCHP 13PW-21 Khajana Ram claimed that there was only one danda Ex. P-4 available on spot on 30.11.2009 and prior to that .
he did not notice any danda laying on the spot. Meaning thereby, it was kept there after 28.11.2009. Similarly spot of incident was also in knowledge of all including police and of respondent and therefore identification of open spot of incident known to all is also of no help to persecution.
Leaving it as it may the only inference can be drawn that rt story of identification of spot by respondent and recovery of danda at his instance is also under suspicions and cannot be relied upon to convict respondent.
16. For proving case, the prosecution has tried to show that respondent had quarrel with deceased at earlier point of time also therefore there was enmity between deceased and respondent. But there is no evidence on record to prove this. Existence of such enmity is also falsified from prosecution story itself as it is case of prosecution that respondent was offered liquor by deceased and they were drinking together on fateful night. Investigation Officer has also admitted that he could not get any evidence of scuffle or quarrel between deceased and respondent prior to ::: Downloaded on - 15/04/2017 20:57:52 :::HCHP 14 incident. Therefore motive is also not proved beyond shadow of doubts.
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17. As per Forensic Science Laboratory report Ex.
PW-18/A human blood was found on pants of respondent but there is no evidence to link it with blood of deceased.
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18. Only alleged eye witness in present case has been found to be unnatural and unbelievable. Therefore his statement cannot be accepted to be true for relying for rt convict respondent. In such eventually statements of rest of witnesses become irrelevant and there is no need to discuss statements of other witnesses who have been examined to prove story put forwarded on the basis of statement of the said eye witness.
19. There is no trustworthy, cogent and reliable evidence on record to hold that respondent has committed an offence under Sections 201 and 302 of the Indian Penal Code.
20. On scrutiny of record, it cannot be said that the learned trial court has not appreciated the evidence correctly and completely and acquittal of the accused has resulted into travesty of justice or has caused mis-carriage ::: Downloaded on - 15/04/2017 20:57:52 :::HCHP 15 of justice. Therefore we are of the considered view that no case for interference is made out.
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21. The present appeal, devoid of any merit, is dismissed, as also pending applications, if any. Bail bonds, if any, furnished by the accused are discharged. Records of of the Court below be sent back immediately.
(Rajiv Sharma),
rt Judge.
(Vivek Singh Thakur),
Judge.
August 04, 2016
**brb**
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