Himachal Pradesh High Court
Gurdev Singh @ Debu And Others vs Respondent on 24 June, 2024
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
2024:HHC:3873-DB IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 520 of 2016 with Cr. Appeal Nos. 492, 513, 514, 519 of 2016 and Cr. Appeal No. 126 of 2017.
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Reserved on: 13.5.2024 Date of Decision: 24.06.2024
1. Cr. Appeal No. 520 of 2016 Gurdev Singh @ Debu and others ...Appellants.
State of H.P.
r to
Versus
...Respondent.
2. Cr. Appeal No. 492 of 2016
Gurvir Singh @ Jona and another ...Appellants.
Versus
State of H.P. ...Respondent.
3. Cr. Appeal No. 513 of 2016
Gurcharan Singh @ Bhuru ...Appellant.
Versus
State of H.P. ...Respondent.
4. Cr. Appeal No. 514 of 2016
Sukhvinder @ Bhau ...Appellant.
Versus
State of H.P. ...Respondent.
::: Downloaded on - 24/06/2024 20:33:23 :::CIS
2
5. Cr. Appeal No. 519 of 2016
Daljit Singh @ Kankal ...Appellant.
Versus
.
State of H.P. ...Respondent.
6. Cr. Appeal No. 126 of 2017
Ashok Kumar @ Rinku ...Appellant.
Versus
State of H.P. ...Respondent.
Coram
Hon'ble Mr Justice Vivek Singh Thakur, Judge.
Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 Yes.
For the Appellants : Mr. Ajay Kochhar, Senior Advocate, with Mr. Vivek Sharma, Advocate, for the appellants in Cr. Appeal Nos.
519 and 520 of 2016.
Mr. H.S. Rana, Ms. Rajvinder Sandhu and Mr. Amrinder Singh Rana, Advocates, for the appellants in Cr. Appeal No. 492 of 2016.
Ms. Sheetal Vyas, Advocate, for the appellants in Cr. Appeal Nos. 513 and 514 of 2016.
Mr. Adarsh K. Vashista, Advocate, for the appellant in Cr. Appeal No. 126 of 2017.
For the Respondent/State: Ms. Seema Sharma, Deputy Advocate General.
1Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 24/06/2024 20:33:23 :::CIS 3Rakesh Kainthla, Judge The present appeal is directed against the judgment and order dated 16.9.2016, passed by learned Additional Sessions .
Judge-I, Solan, District Solan, H.P. vide which the appellants (accused persons before the learned Trial Court) were convicted and sentenced as under:-
Under Section 302 of IPC To suffer imprisonment for life r toand to pay a fine of ₹25,000/- each and in default of payment of fine, to undergo imprisonment for two years each.
Under Section 25 of the Arms To suffer rigorous imprisonment Act read with Section 34 of for four years and to pay a fine of IPC. ₹5,000/- each and in default of payment of the fine, to undergo simple imprisonment for six months each.
Under Section 27 of the Arms To suffer rigorous imprisonment Act read with Section 34 of for three years and to pay a fine of IPC. ₹5,000/- each and in default of payment of the fine, to undergo simple imprisonment for six months each.::: Downloaded on - 24/06/2024 20:33:23 :::CIS 4
(Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).
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2. Briefly stated, the facts giving rise to the present appeals are that the police presented a challan against the accused persons before the learned Trial Court for the commission of offences punishable under Sections 147, 148, 149, 302, 323, 324, 427, 201, 120-B of the Indian Penal Code (IPC), Sections 25 and 27 of the Arms Act and Section 3 of the Prevention of Damage to Public Property Act. It was asserted that an intimation was given to Check Post Bagheri on 4.4.2013 that one person was lying on the road in serious condition on Toll Tax Barrier Bagheri after a quarrel. Inspector/SHO Bir Bahadur (PW42), SI Ramesh Chand, SI Mehar Singh, PSI Ravinder, ASI Ramesh Kumar, ASI Sanjay Kumar, HC Prem Lal, Constable Balwant, Constable Ajay Kumar, Constable Nitesh Kumar, Constable Harpreet Singh and Constable Chet Ram went to Bagheri Toll Tax Barrier in an official vehicle bearing registration No. HP-12B-0100, being driven by Constable Kapil Mohan. ASI Mohan Singh (PW27) and ASI Brij Lal (PW24) were present at the spot. No person was found on the spot. It was found after the ::: Downloaded on - 24/06/2024 20:33:23 :::CIS 5 inquiry that the injured was taken to the First Referral Unit (FRU), Nalagarh. ASI Brij Lal was directed to preserve the spot.
Bir Bahadur Dy. SP reached the FRU, Nalagarh where Sukhdev .
Singh (PW16) made a statement before the police, stating that he had been employed in Toll Tax Barrier, Bagheri since 1.4.2013. He was discharging his duties from 8.00 PM of 3.4.2013 till 8.00 AM of 4.4.2013. Naresh @ Gutti (since deceased), Pappu, Laddi, Surinder and Baba were posted with him. Informant Naresh, Laddi and Jagdish Singh (PW17) were talking to each other in the parking near the dhaba. Sunil Kumar (PW1) and Avtar Singh (PW2) reached the spot in their Bolero vehicle. The informant had worked with Sunil at Ghara-Mora Barrier. Jona, Kankal, Todu, Bhuru, Honey, Bau and 2-3 persons came to the spot at about 11.30 PM. Kankal and Jona attacked the informant and other persons with pistols and others attacked them with swords and rods. They damaged the windowpanes of the vehicle of Sunil.
Todu, Bhuru, Honey, and Bau had swords/kirpans in their hand.
Rinku had a stick with him and other persons, who could not be identified, had rods with them. Kankal and Jona had fired at the informant and other persons. Everyone ran to save his life.
Naresh alias Gutti ran towards the Toll Tax Barrier but the ::: Downloaded on - 24/06/2024 20:33:23 :::CIS 6 assailants followed him to the barrier. The informant heard the sound of 2-3 gunshots. He and Jagdish went to the toll barrier after some time and found Naresh lying in an injured condition .
in the middle of the road. He was taken to Nalagarh for treatment. Avtar Singh and Jagdish Singh also reached the spot.
They had sustained injuries. They were taken to the hospital.
Naresh alias Gutti succumbed to his injuries on the way. The assailants had quarreled with deceased Naresh and FIR was registered against the assailant in Police Station Anandpur Sahib.
Kankal, Jona, Todu, Bhuru, Bau, Honey, Rinku and 2-3 persons had attacked and injured the informant party. Statement (Ex.PW16/B) was reduced into writing which was sent to the Police Station, where FIR (Ex.PW31/A) was registered.
3. ASI Mohan Singh (PW27) conducted the inquest and prepared the reports (Ex.PW27/A and Ex.PW27/B). He filed an application (Ex.PW27/C) for conducting the postmortem examination of the deceased. Dr. Atul Bhardwaj (PW28) conducted the postmortem examination of the deceased and found multiple injuries on the dead body. In his opinion, the person died due to multiple lacerated wounds leading to intracranial haemorrhage and haemorrhagic shock caused by the ::: Downloaded on - 24/06/2024 20:33:23 :::CIS 7 sharp-edged weapon. He issued the postmortem report (Ex.PW28/A). He preserved the viscera and handed it over to the police officials accompanying the dead body. ASI Mohan Singh .
(PW27) handed over the dead body to the brother of the deceased vide memo (Ex.PW27/D). He deposited the case property with MHC, Police Station, Nalagarh.
4. Dy.S.P. Bir Bahadur (PW42) went to the spot and prepared the site plan (Ex.PW42/B). PSI Ravinder (PW23) took the photographs (Ex.PW17/A1 to Ex.PW17/A6). One Bolero was found on the spot. Its windscreen and side glasses were found to be damaged. It was seized vide memo (Ex.PW1/A). One motorcycle having cut marks on the fuel tank was found on the spot. It was seized vide memo Ex.PW1/B). Three empty cartridges and one country-made pistol were found on the spot. The sketch of the pistol (Ex.PW42/C) was prepared. The pistol was put in a parcel and the empty cartridges were put in other parcels. Both the parcels were sealed with the seal impression 'G'. Specimen impression (Ex.PW42/D) was taken up on a separate piece of cloth. These were seized vide memo (Ex.PW1/E).
5. Dy. S.P. Bir Bahadur (PW42) found damage caused to the Excise Department's post. Its glasses were found smashed ::: Downloaded on - 24/06/2024 20:33:23 :::CIS 8 and blood was scattered on the floor. Earth and sand were found scattered. Some of the broken glasses were seized by the police.
These were put in a parcel and the parcel was sealed with a seal .
impression 'G'. Samples of earth/sand and blood were found on the floor, which were put in separate parcels. The parcels were sealed with seal impression 'G'. Memos (Ex.PW4/B and Ex.PW4/C) were prepared. A blood sample was lifted from the spot outside the Excise Post where the injured/deceased had fallen. A sample of controlled earth from the adjoining spot and a blood-soiled scarf (parna) were found lying on the spot. These were put in separate parcels. The parcels containing blood samples and earth were sealed with seal impression 'G' and the parcel containing scarf was sealed with seal impression 'N'.
Sample seal (Ex.PW3/B) was taken separately on the cloth. These were seized vide memos (Ex.PW3/A and Ex.PW4/D).
6. Dr S.K. Raghav (PW30) conducted the medical examination of Avtar Singh and found multiple injuries on his person which could have been caused within less than two hours by sharp-edged weapons. He issued MLC (Ex.PW30/A). He also examined Jagdish Singh and found multiple injuries on his ::: Downloaded on - 24/06/2024 20:33:23 :::CIS 9 person, which could have been caused within twelve hours by a blunt weapon. He issued MLC (Ex.PW30/B).
7. Naseeb Singh Patial (PW33) visited the spot on .
5.4.2013 and found a pool of blood, broken pieces of glass, a Mahindra Jeep, and a motorbike. He photographed the spot and advised the Investigating Officer to send the physical evidence to the State Forensic Science Laboratory (SFSL), Junga for further examination. He issued the report (Ex.PW33/B). He found blood stains on the door of the Excise & Taxation Office. Cut marks on the tin sheet and the door suggesting that these cut marks were produced by a dint of sword. He also found a pool of blood on the road in front of the gate of the cement plant, which tested positive for human blood. He found gunshot holes in the wire mesh, glass and the tin sheet indicating that a shot was fired from outside of the Excise & Taxation Office. The broken pieces of glass were found scattered on the floor of the room. A Mahindra Bolero Jeep was parked on the premises of the Police Station. Its headlight, indicator and glasses were found broken. A motorbike was parked in Police Post Bagheri. Dents were present on the fuel tank and cut marks were present on the seat of the motorbike. The headlight glass and pieces of the Enfield ::: Downloaded on - 24/06/2024 20:33:23 :::CIS 10 motorbike were broken. He issued the report (Ex. PW33/B) and suggested to the Investigating Officer to send the physical evidence to the State Forensic Science Laboratory, Junga for .
further examination.
8. Dy. SP Bir Bahadur cut the pieces of wire mesh and the portion of the tin containing cut marks. He put them in separate parcels and sealed them with seal impression 'M'.
Specimen seal (Ex.PW23/A) was taken on a separate piece of cloth and the seal was handed over to Ravinder Negi (PW23) after the use. These were seized vide memo (Ex.PW23/B).
9. Accused Ashok and Harmeet disclosed that they had concealed the clothes worn by them on the date of the incident in their respective houses. Accused Harmeet got recovered jeans (Ex. P44), a T-shirt (Ex. P43) and Parna (Ex. P44). Accused Ashok got recovered shirt (Ex. P13) and trousers (Ex. P12). These were put in separate parcels (Ex. P43 to Ex. P45). The parcels were sealed with seal impressions 'R' and 'V'. Specimen seal 'R' (Ex.PW23/D) was taken on a separate piece of cloth. Recovery memos (Ex.PW8/A and Ex.PW13/A) were prepared. Site plans (Ex.PW42/E and Ex.PW42/F) were prepared.
::: Downloaded on - 24/06/2024 20:33:23 :::CIS 1110. Accused Gurveer alias Jona led Bir Bahadur, ASI Sanjay and Pritam Singh to his house. He got recovered one T-
shirt, a pair of jeans pants and a scarf. These were put in a parcel .
and the parcel was sealed with five impressions of seal 'H'.
Specimen impression was taken on a separate piece of cloth and the seal was handed over to Sanjay Kumar after the use. These were seized vide memo (Ex.PW9/A). A site plan (Ex.PW42/G) was prepared.
11. Accused Daljit alias Kankal made a disclosure statement on 8.4.2013 that he could get recovered a 'khanda' (kind of sword) and motorcycle that were used on the date of the incident. He also stated that he could point out the place where he had burnt his clothes as well as the clothes of his co-accused Deedar. His statement (Ex.PW19/A) was reduced into writing and was signed by the accused and the witnesses. The accused led the police to his house situated at Mangiwal (Anandpur Sahib) and got recovered a motorcycle bearing registration No. PB-16c-9357 and a Khanda (Ex. P35). A sketch (Ex.PW23/C) was prepared.
Khanda was put in a parcel and the parcel was sealed with three impressions of seal 'R'. Specimen impression (Ex.PW23/D) was prepared. Khanda was seized vide memo (Ex.PW11/B). A site plan ::: Downloaded on - 24/06/2024 20:33:23 :::CIS 12 (Ex.PW42/H) was prepared. Accused Daljit led the police party and the witnesses towards the bank of Sutluj River on Anandpur-
Garhshankar road and pointed to the ash. The police put the ash .
in a container. The container was put in a parcel and the parcel was sealed with three impressions of seal 'A'. Specimen impression (Ex.PW11/A) was taken on a separate piece of cloth and the seal was handed over to SI Ravinder Singh after the use.
The parcel was seized vide memo (Ex.PW10/D). A site plan (Ex.PW42/H) was prepared.
12. Accused Gurvir alias Jona made a disclosure statement on 9.4.2013 that he could get a sword (Kirpan) recovered from the place near Loon Khad. His statement (Ex.PW19/B) was reduced into writing and it was signed by the accused and the witnesses. He led the police party to a bush from where he got recovered a sword (Ex. P51), sketch (Ex.PW42/K) of the sword was prepared. The sword was put in a parcel and the parcel was sealed with three seals of seal 'M'. Specimen impression (Ex.PW23/A) was prepared and the seal was handed over to the witness after the use. Sword was seized vide memo (Ex.PW18/A) and the site plan showing the place of recovery (Ex.PW42/L) was prepared.
::: Downloaded on - 24/06/2024 20:33:23 :::CIS 1313. Accused Didar Singh made a disclosure statement (Ex.PW19/C) on 12.4.2013, stating that he could recover three swords used in the commission of offence used by him, Ashok .
alias Rinku and Honey from the shop of a scrap dealer at Anandpur Sahib. He could also point out a place where he and the co-accused had burnt their clothes. The accused led the police party and the witnesses to Anandpur Sahib, where he recovered three swords (Ex. P54, Ex. P55 and Ex. P56) from the shop of a scrap dealer. Sketches (Ex.PW42/M, Ex.PW42/N and Ex.PW42/P) were prepared. Swords were put in a parcel and the parcel was sealed with three impressions of seal 'S'. Specimen impression (Ex.PW21/B) was taken on a separate piece of cloth. Swords were seized vide memo (Ex.PW21/A). A site plan (Ex.PW42/Q) showing the place of recovery was also prepared.
14. Accused Sukhvinder and Gurcharan got recovered their clothes from their rooms on 13.4.2013. These were put in a parcel and the parcel was sealed with seal impression 'D' specimen impression (Ex.PW26/A) was taken on a separate piece of cloth. The clothes were seized vide memos (Ex.PW10/A and Ex.PW10/C). Site plans (Ex.PW42/A) and (Ex.PW42/S) were prepared. The mobile phone of accused Sukhvinder along with its ::: Downloaded on - 24/06/2024 20:33:23 :::CIS 14 SIM Card was taken into possession. It was taken in a cloth parcel and the parcel was sealed with three impressions of seal 'D'. The seal impression (Ex.PW26/A) was taken on a separate piece of .
cloth. The parcel was seized vide memo (Ex.10/B).
15. Gurdev Singh produced his clothes on 13.4.2013 from his house. These were put in a parcel and the parcel was sealed with five seals of seal impression 'B'. Specimen impression (Ex.PW26/C) was taken on a separate piece of cloth. These were seized vide memo (Ex.PW10/E). A site plan (Ex.PW42/T) showing the place of recovery was prepared.
16. Dy.S.P. Bir Bahadur seized the motorcycle bearing registration No. PB-16B-9397 along with documents (Ex.PW42/U) vide memo (Ex.PW10/M).
17. Accused Magar Singh got recovered the clothes from his house. These were put in a cloth parcel and the parcel was sealed with five impressions of seal 'T'. The seal impression (Ex.PW26/B) was taken on a separate piece of cloth. These were seized vide memo (Ex.PW10/D). A site plan (Ex.PW42/V) was prepared. The clothes of accused-Satinder and a rod were recovered from his house. These were put in separate parcels and each parcel was sealed with the seal impression 'Y'. Specimen ::: Downloaded on - 24/06/2024 20:33:23 :::CIS 15 impression (Ex.PW27/E) was prepared. These were seized vide memos (Ex.PW12/A and Ex.PW12/B). A site plan (Ex.PW42/W) was prepared.
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18. The mobile phone of accused-Deedar was recovered from his house. It was seized vide memo (Ex.PW12/C). A site plan (Ex.PW42/X) was prepared.
19. A motorcycle bearing the registration number of Punjab along with the documents used by accused-Satinder on the date of the incident was seized vide memo (Ex.PW15/A).
20. Accused Daljit alias Kankal pointed out the place of the incident on 15.4.2013 and a memo (Ex.PW6/A) was prepared.
The articles were sent to SFSL Junga for analysis and the reports (Ex. Px and Ex.PY) were issued stating that human blood was found on the blood-stained glass lifted from the Excise & Taxation Office, blood lifted by scratching the floor of the room of Excise & Taxation Office, piece of tin, blood-stained soil, blood stained T-Shirt, vest, pants, underwear of deceased-Naresh Kumar and sword. Blood was detected on a controlled soil sample lifted from the spot. Blood was detected on the socks and handkerchief of deceased-Naresh Kumar but it was insufficient for serological examination. Human blood was found on a ::: Downloaded on - 24/06/2024 20:33:23 :::CIS 16 T-shirt of accused-Harneet Singh, which was insufficient for further examination. Blood was detected in traces on the sword, which was insufficient for further examination. The hair found .
on blood-stained parna and sample hair of Gurmeet were identified as human head hair, which were similar to each other.
These hairs were different from the sample hair of Gurcharan, Maghar Singh, Daljit Singh, Harneet Singh, Sukhvinder Singh, Ashok Kumar, Didar Singh, Gurdev Singh and Satinder Singh;
however, these were identified as human hair and different from each other. The hair found in the controlled sample lifted from the floor of the room of the Excise and Taxation Office were identified as a mixture of human head hair, which could not be compared with human hair. The report (Ex.PY) stated that the DNA profile obtained from the blood-stained parna, vest and Jeans of deceased-Naresh Kumar matched with the blood-
stained glass pieces, blood lifted by scratching the floor, blood-
stained soil lifted near the dead body, and the T-shirt of Harneet Singh. The DNA profile obtained from the sword matched with the DNA profile obtained from blood stained parna, vest and jean pants of deceased-Naresh Kumar. Statements of the remaining witnesses were recorded as per their version and after the ::: Downloaded on - 24/06/2024 20:33:23 :::CIS 17 completion of the investigation, the challan was prepared and presented before the Court.
21. Learned Additional Sessions Judge-I, Solan, District .
Solan, H.P. framed the charges against the accused persons for the commission of offences punishable under Sections 120-B, 302, 324, 323, 427, read with Section 34 of IPC and Sections 25 and 27 of the Indian Arms Act read with Section 34 of IPC, to
22. to which they pleaded not guilty and claimed to be tried.
The prosecution examined 42 witnesses to prove its case. Sunil Kumar (PW1), Avtar Chand (PW2), Sunder Lal (PW3), Hameer Chand (PW4), Suresh Kumar (PW6), Rajneesh Sharma (PW5), Sukhdev Singh (PW16), Jagdish Singh (PW17) and Karamjeet Singh (PW40) are the witnesses to the incident. Sher Singh (PW7) conducted the mechanical examination of the vehicle. Prem Chand (PW8) is the witness to recovery. Pritam Singh (PW9) is the witness to the recovery got effected by accused-Gurveer. Gian Chand (PW10) is the witness to the recovery got effected by accused-Sukhvinder Singh. Manjeet Kaur (PW11) is the witness to the recovery got effected by accused-Daljit Singh. Ajmer Singh (PW12) is the witness to the recovery that was got effected by the accused Satinder Singh alias ::: Downloaded on - 24/06/2024 20:33:23 :::CIS 18 Shindi. Manjeet Kaur (PW13) is the witness to the recovery got effected by accused-Harmeet Singh. Nirmal Singh (PW14) is the witness to the pointing out of the place by accused Daljit Singh.
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Vikrant Singh (PW15) is the witness to the recovery of the motorcycle and the documents. Raj Kumar (PW18) is the witness to the recovery got effected by the accused Jona. Gurdhian Singh (PW19) is the witness to the disclosure statement made by accused Kankal and the recovery got effected by accused Jona.
Saravjeet Singh (PW20) had produced the motorcycle. Jaspreet Singh (PW21) is the witness to the recovery of the sword/kirpan that was got effected by accused-Dildar. Bhajan Singh (PW22) is the witness to the recovery of kirpan. PSI Ravinder Negi (PW23) is the witness to the disclosure statements and consequent recoveries. ASI Brij Lal (PW24) was posted as in charge of Police Post Bagheri, who went to the spot to verify the information given by the Excise Inspector regarding the quarrel. HC Inder Singh (PW25) is the witness to the recovery of the motorcycle.
ASI Sanjay Kumar (PW26) is the witness to the recovery of the clothes. ASI Mohan Singh (PW27) partly conducted the investigation. Dr. Atul Bhardwaj (PW28) conducted the postmortem examination of the dead body. Ram Gopal (PW29) ::: Downloaded on - 24/06/2024 20:33:23 :::CIS 19 proved the sanction for prosecution granted by District Magistrate, Solan. Dr. S.K. Raghav (PW30) medically examined Avtar Singh and Jagdish. Karamdeen (PW31) signed the FIR. HC .
Harvinder Kumar (PW32) was working as MHC with whom the case property was deposited. Naseeb Singh Patial (PW33) visited the spot and conducted the spot inspection. He also analyzed the case property in FSL. Ganga Narayan Jha (PW34) issued the call detail record of various mobile numbers of Vodaphone. Vivek Panwar (PW35) issued the call details record of the mobile number of BSNL. Farid Mohammad (PW36) demarcated the spot and issued the report and tatima. Constable Jatinder Kumar (PW37) proved the entry in the daily diary. Bhag Singh (PW38) carried the case property to the Forensic Science Laboratory (FSL), Junga. HC Madho Ram (PW39) recorded the statements of Vivek and Gange Narayan. Chaman Lal (PW41) partly conducted the investigation. Bir Bahadur (PW42) conducted the investigation.
23. The accused in their statements recorded under Section 313 of Cr.PC denied the prosecution case in its entirety.
They claimed that they were innocent and were falsely implicated. Accused Daljit Singh stated that some of the ::: Downloaded on - 24/06/2024 20:33:23 :::CIS 20 witnesses deposed against the accused persons, as they had filed cases against the complainant party, which are pending in different Courts. The other witnesses were related to the .
members of the complainant party. They examined HC Amar Singh (DW1) and also tendered certified copies of the documents.
24. The Learned Trial Court held that both the parties were known to each other due to old enmity and registration of criminal cases against each other. Medical evidence proved that Naresh Kumar alias Gutti died due to multiple grievous injuries sustained by him. Jagdish, Avtar Singh and Sunil also sustained injuries in the incident. The testimonies of the prosecution witnesses were corroborated by the various recoveries. The marginal improvements in the testimonies of the prosecution witnesses were not sufficient to discard them. The prosecution case cannot be doubted because some of the witnesses did not support the prosecution case. The presence of Sukhdev and Jagdish was established by the injuries sustained by them. The material objects recovered at the instance of the accused also corroborated the prosecution's version. One of the swords recovered at the instance of the accused Gurvir Singh had the blood of the deceased. A parna recovered from the spot contained ::: Downloaded on - 24/06/2024 20:33:23 :::CIS 21 the hair of accused Gurvir Singh. The blood found on the T-shirt of accused-Harneet Singh matched with the blood of the deceased, which showed his involvement in the commission of .
crime. The sword recovered at the instance of accused-Gurvir Singh alias Jona contained blood that matched the DNA profile of the deceased. This evidence corroborated the prosecution's version; however, the conspiracy of the accused was not proved.
It was also not proved that the vehicle of the Excise & Taxation Department was knowingly damaged by the accused. There was no evidence that the property of the office of the Excise & Taxation Department was damaged. Hence, the accused were convicted and sentenced as aforesaid.
25. We have heard Mr Ajay Kochhar, learned Senior Counsel assisted by Mr Vivek Sharma, learned counsel for the accused/appellants-Gurdev Singh, Didar Singh, Satinder Singh, Magar Singh and Daljeet Singh, Mr H.S. Rana, Ms Rajvinder Sandhu and Mr Amrinder Singh Rana, learned counsel for the accused/appellants-Gurvir Singh and Harneet Singh, Ms Sheetal Vyas, learned counsel for the accused/appellants-Gurcharan Singh and Sukhvinder Singh, Mr Adarsh K. Vashist, learned counsel for the accused/appellant-Ashok Kumar and Ms Seema ::: Downloaded on - 24/06/2024 20:33:23 :::CIS 22 Sharma, learned Deputy Advocate General for the respondent/State.
26. Mr. Ajay Kochhar, learned Senior Counsel submitted .
that the learned Trial Court erred in convicting and sentencing the accused. It was wrongly held that the testimonies of Sukhdev Singh (PW16) and Jagdish Singh (PW17) were reliable. Avtar Chand (PW2), who was not declared hostile, specifically stated that the faces of the assailants were muffled. This created doubt regarding the identification made by Sukhvinder Singh and Jagdish Singh. Even otherwise, when two versions are appearing on record, one in favour of the defence has to be preferred to the version in favour of the prosecution. The recoveries were not legally proven. The size of the sword changed in the laboratory showing that the integrity of the case property was not established. The genesis of the prosecution case was suppressed.
The names of the assailants were not known to the eyewitnesses at the earliest as is apparent from the fact that the names of the assailants were not mentioned in the inquest report. Learned Trial Court ignored this evidence and erred in convicting and sentencing the accused. Hence, he prayed that the present ::: Downloaded on - 24/06/2024 20:33:23 :::CIS 23 appeals be allowed, and judgment and order passed by the learned Trial Court be set aside.
27. Mr H.S. Rana and Ms Rajvinder Sandhu, learned .
counsel for the accused/appellants-Gurvir Singh and Harneet Singh adopted the submissions of Mr Ajay Kochhar, learned Senior Counsel and further submitted that the witnesses had materially improved upon their version. They were properly confronted with their previous statements. They narrated the facts before the Court, which were never asserted by them before the Police. This cast doubt on their testimonies. Hence, they prayed that the present appeal be allowed and the judgment and order passed by the learned Trial Court be set aside.
28. Ms Sheetal Vyas, learned counsel for the accused/appellants Gurcharan Singh and Sukhvinder Singh and Mr Adarsh K. Vashist, learned counsel for the accused/appellant-
Ashok Kumar adopted the submissions and they also prayed that the accused be acquitted.
29. Ms. Seema Sharma, learned Deputy Advocate General for the respondent/State supported the judgment and order passed by the learned Trial Court. She submitted that the testimonies of the eyewitnesses were consistent and their ::: Downloaded on - 24/06/2024 20:33:23 :::CIS 24 presence was established by the injuries sustained by them. The defence evidence showed that the accused and the complainant party were known to each other. They had filed complaints .
against each other. Hence, the learned Trial Court had rightly held that the question of identification is not material in the present case. The discrepancy in the weapons of offence could be because the weapons were measured with sheath and without the sheath. The report of the FSL corroborated the testimonies of eyewitnesses. Therefore, she prayed that the present appeal be dismissed.
30. We have given considerable thought to the submissions and have gone through the records carefully.
31. Avtar Chand (PW2) stated that he went from Nangal to Bagheri on 3.4.2013 with Sunil Kumar (PW1), in charge of Toll Tax Barrier Gharamora. He (Avtar Chand) was working at Toll Tax Barrier Golthai. Vikram and another person were also present in the vehicle. They reached Bagheri at 11.15 AM. They went to the parking located below the Toll Tax Barrier. Sunil made the payment of his salary to Laddi and also to Sonu alias Sushil. They were talking to each other. It was dark. They were attacked with something. He sustained injuries on his head. He ::: Downloaded on - 24/06/2024 20:33:23 :::CIS 25 became unconscious and regained consciousness about half an hour later. He went to the Toll Tax Barrier and saw the body of Naresh alias Gutti. He was taken to the hospital in Ambulance at .
Nalagarh. Gutti was also taken to the hospital in the same Ambulance. He did not know who had attacked him. He stated in his cross-examination that no one knew the assailants. The faces of all the assailants were muffled. He was medically examined by the police. His clothes were removed in the hospital. He became unconscious after coming from the hospital. He found that he was wearing fresh clothes after regaining consciousness.
32. He was put forward as a witness of truth by the prosecution. He was not cross-examined. He was not even re-
examined after he had stated that the faces of the assailants were muffled. In Javed Masood vs. State of Rajasthan (2010) 3 SCC 538, the prosecution came up with a specific version that the incident was witnessed by three witnesses Husain Lal (PW-4), Rayees (PW-14) and Ayub Bhai (PW-6). When PW-6 Ayub Bhai appeared in the Court, he stated that he saw some crowd and came to know on inquiries that the deceased was lying completely soaked in blood. He telephoned other persons who came after some time.
This witness was not declared hostile. He was not even re-
::: Downloaded on - 24/06/2024 20:33:23 :::CIS 26examined by the prosecution. It was held that his testimony made the prosecution case doubtful regarding the presence of other persons and it would not be proper to rely on their .
testimonies. It was observed:
"This witness did not support the prosecution case. He was not subjected to any cross-examination by the prosecution. His evidence remained unimpeached. There is no reason to disbelieve the evidence of PW-6 and no valid reason has been suggested as to why his evidence cannot be relied on and taken into consideration. The evidence of PW-6, if it is to be taken into consideration, makes the presence of PWs 5, 13 and 14 highly doubtful at the scene of occurrence. We do not find any reason whatsoever to discard the evidence of PW-6 who is an independent witness. His evidence is binding on the prosecution as it is. No reason, much less valid reason has been stated by the Division Bench as to how evidence of PW-6 can be ignored.
13. In the present case, the prosecution never declared PWs 6, 18, 29 and 30 "hostile". Their evidence did not support the prosecution. Instead, it supported the defence. There is nothing in the law that precludes the defence to rely on their evidence. This court in Mukhtiar Ahmed Ansari vs. State (NCT of Delhi) (2005) 5 SCC 258 observed:
"30. A similar question came up for consideration before this Court in Raja Ram v. the State of Rajasthan, (2005) 5 SCC 272. In that case, the evidence of the Doctor who was examined as a prosecution witness showed that the deceased was being told by one K that she should implicate the accused or else she might have to face prosecution. The Doctor was not declared "hostile". The High Court, however, convicted the accused. This Court held that it was open to the defence to rely on the evidence of the Doctor and it was binding on the prosecution.::: Downloaded on - 24/06/2024 20:33:23 :::CIS 27
31. In the present case, evidence of PW1 Ved Prakash Goel destroyed the genesis of the prosecution that he had given his Maruti car to police in which police had gone to Bahai Temple and apprehended the accused. When Goel did not support that case, the .
accused can rely on that evidence."
33. Similar is the judgment in Ram Sewak vs. State 2004(11) SCC 259 wherein it was held that when a discrepancy had cropped up in the cross-examination which was not clarified in the cross-examination, the benefit of the said discrepancy r to would go to the defence. It was observed:
"Even assuming that there is some doubt as to the interpretation of this part of his evidence since the same is not clarified by the prosecution by way of re-examination, the benefit of the doubt should go to the defence which has in specific terms taken a stand that the FIR came into being only after the dead body was recovered."
34. In the present case, when the prosecution had chosen not to re-examine the witness to clarify his testimony that the faces of assailants were muffled, his testimony will bind the prosecution and the benefit of the same has to be given to the accused.
35. His presence on the spot was duly established by the injuries sustained by him. Dr. S.K. Raghav (PW30) conducted his examination on 4.4.2013 and found multiple injuries on his person which could have been caused within less than two hours of the examination. He issued the MLC (Ex.PW30/A) showing the ::: Downloaded on - 24/06/2024 20:33:23 :::CIS 28 injuries sustained by Avtar. Therefore, the testimony of Avtar Singh cannot be brushed aside that all the assailants were muffled and the witnesses could not identify them.
.
36. Sunil Kumar (PW1) stated that Gutti (deceased), Jagdish and Sonu were sitting in a vehicle. Laddi also came from Barrier. 5 to 10 persons came and attacked the informant party.
The windowpane of the vehicle was damaged by the stick. One shot was fired by some person. He could not know who were the assailants. He was attacked by someone with a muffled face by a darat and he sustained an injury in the middle finger of his left hand. He was permitted to be cross-examined. He denied part of the previous statement recorded by the police and admitted parts of the previous statements recorded by the police. He specifically denied that he had identified and recognized the accused persons. He stated in his cross-examination that it was dark in the night at the time of the incident. He could not tell how many persons had attacked the informant party. He could only notice one person with a muffled face and he could not see the others.
37. This witness has also not supported the prosecution's version regarding the identity. He categorically stated that one ::: Downloaded on - 24/06/2024 20:33:23 :::CIS 29 person with a muffled face attacked him and he sustained injury by a darat. He was unable to identify the rest of the assailants.
38. Reliance was placed upon the parts of the statements .
made by him to the police during the investigation, which were admitted by him to be correct. In this regard, it is to be noticed that the statement record under Section 161 of Cr.PC is not a substantive piece of evidence and the statement made to the police cannot be used for any purpose except to contradict the prosecution witness as per Section 162 of Cr. PC. Therefore, it is not permissible to ask a witness as to what was told by him to the police and in this manner prove the statement recorded by the police. In Tahsildar Singh v. State of U.P., 1959 Supp (2) SCR 875:
AIR 1959 SC 1012: 1959 Cri LJ 1231 (six-judges bench) learned Counsel for the defence asked the following questions from the witness during his cross-examination:
1. "Did you state to the investigating officer that the gang rolled the dead bodies of Nathi, Saktu and Bharat Singh, and scrutinise them and did you tell him that the face of Asa Ram resembled that of the deceased Bharat Singh?"
2. "Did you state to the investigating officer about the presence of the gas lantern?"
39. Learned Sessions Judge disallowed the questions holding that omission does not amount to contradiction and cannot be put under Section 161 of Cr.P.C. He held:
::: Downloaded on - 24/06/2024 20:33:23 :::CIS 30"Therefore, if there is no contradiction between his evi- dence in court and his recorded statement in the diary, the latter cannot be used at all. If a witness deposes in court that a certain fact existed but had stated under Section 161 CrPC either that that fact had not existed or that the re-
.
verse and irreconcilable fact had existed, it is a case of conflict between the deposition in the court and the state- ment under Section 161 CrPC and the latter can be used to contradict the former. But if he had not stated under Sec-
tion 161 anything about the fact, there is no conflict and the statement cannot be used to contradict him. In some cases an omission in the statement under Section 161 may amount to contradiction of the deposition in court; they are the cases where what is actually stated is irreconcilable with what is omitted and impliedly negatives its exis- tence."
40. A question arose before the Hon'ble Supreme Court whether the questions were wrongly disallowed. It was held that the form of the questions was defective as they elicited to know from the witness what he had told the police and were properly disallowed. It was observed:
13.. ...... The procedure prescribed is that, if it is intended to contradict a witness by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. The proviso to Section 162 of the Code of Criminal Procedure only enables the accused to make use of such a statement to contradict a witness in the manner provided by Section 145 of the Evidence Act. It would be doing vio-
lence to the language of the proviso if the said statement be allowed to be used for the purpose of cross-examining a witness within the meaning of the first part of Section 145 of the Evidence Act. Nor are we impressed by the argu- ment that it would not be possible to invoke the second part of Section 145 of the Evidence Act without putting ::: Downloaded on - 24/06/2024 20:33:23 :::CIS 31 relevant questions under the first part thereof. The diffi- culty is more imaginary than real. The second part of Sec- tion 145 of the Evidence Act clearly indicates the simple procedure to be followed. To illustrate: A says in the wit- ness box that B stabbed C; before the police, he had stated .
that D stabbed C. His attention can be drawn to that part of the statement made before the police which contradicts his statement in the witness box. If he admits his previous statement, no further proof is necessary; if he does not admit it, the practice generally followed is to admit it sub- ject to proof by the police officer. On the other hand, the procedure suggested by the learned counsel may be illustrated thus: If the witness is asked "Did you say before the police officer that you saw a gas light?" and he answers "Yes", then the statement which does not contain such recital is put to him as a contradiction. This procedure involves two fallacies: one is it enables the accused to elicit by a process of cross-examina- tion what the witness stated before the police officer. If a po-
lice officer did not make a record of a witness's statement, his entire statement could not be used for any purpose, whereas if a police officer recorded a few sentences, by this process of cross-examination, the witness's oral statement could be brought on record. This procedure, therefore, contravenes the express provision of Section 162 of the Code. The second fal-
lacy is that by the illustration given by the learned counsel for the appellants, there is no self-contradiction of the primary statement made in the witness box, for the witness has yet not made on the stand any assertion at all which can serve as the basis. The contradiction, under the section, should be between what a witness asserted in the witness box and what he stated before the police officer, and not between what he said he had stated before the police officer and what he actually made be- fore him. In such a case the question could not be put at all:
only questions to contradict can be put and the question here posed does not contradict; it leads to an answer which is con- tradicted by the police statement. This argument of the learned counsel based upon Section 145 of the Evidence Act is, therefore, not of any relevance in considering the express pro- visions of Section 162 of the Code of Criminal Procedure. xxxxxxxxx ::: Downloaded on - 24/06/2024 20:33:23 :::CIS 32
51. It must not be overlooked that the cross-examination must be directed to bringing out a contradiction between the statements and must not subserve any other purpose.
If the cross-examination does anything else, it will be barred under Section 162 which permits the use of the ear-
.
lier statement for contradicting a witness and nothing else. Taking the example given above, we do not see why cross-examination may not be like this:
Q. I put it to you that when you arrived on the scene X was already running away and you did not actually see him stab D as you have deposed today?
A. No. I saw both events.
Q. If that is so, why is your statement to the police silent as to stabbing?
A. 1 stated both the facts to the police.
The witness can then be contradicted with his previous statement. We need hardly point out that in the illustra- tion given by us, the evidence of the witness in court is di- rect evidence as opposed to testimony to a fact suggesting guilt. The statement before the police can only be called circumstantial evidence of complicity and not direct evi- dence in the strict sense. Of course, if the questions framed were:
Q. What did you state to the police? or Q. Did you state to the police that D stabbed X? they may be ruled out as infringing Section 162 of the Code of Criminal Procedure because they do not set up a contradiction but attempt to get a fresh version from the witnesses with a view to contradicting him. How the cross-examination can be made must obviously vary from case to case, counsel to counsel and statement to statement. No single rule can be laid down and the propriety of the question in the light of the two sections can be found only when the facts and questions are before the court. But we are of the opinion that relevant and material omissions amount to vital con- tradictions, which can be established by cross-examina-::: Downloaded on - 24/06/2024 20:33:23 :::CIS 33
tion and confronting the witness with his previous state- ment.
xxxxxxxx
59. This brings us to the consideration of the questions, .
which were asked and disallowed. These were put during the cross-examination of Bankey, PW 30. They are:
Q. Did you state to the investigating officer that the gang rolled the dead bodies of Nathi, Saktu and Bharat Singh and scrutinized them, and did you tell him that the face of Asa Ram resembled that of the deceased Bharat Singh?
Q. Did you state to the investigating officer about the presence of the gas lantern?
These questions were defective, to start with. They did not set up a contradiction but attempted to obtain from the witness a version of what he stated to the police, which is then contra-
dicted. What is needed is to take the statement of the police as it is, and establish a contradiction between that statement and the evidence in court. To do otherwise is to transgress the bounds set by Section 162 which, by its absolute prohibition, limits even cross-examination to contradictions and no more. The cross-examination cannot even indirectly subserve any other purpose. In the questions with which we illustrated our meaning, the witness was not asked what he stated to the po-
lice but was told what he had stated to the police and asked to explain the omission. It is to be borne in mind that the state- ment made to the police is "duly proved" either earlier or even later to establish what the witness had then stated." xxxxxxxxx
60. In our opinion, the two questions were defective for the reasons given here and were properly ruled out, even though all the reasons given by the court may not stand scrutiny. The matter was not followed up with proper questions, and it seems that similar questions on these and other points were not put to the witness out of deference (as it is now suggested) to the ruling of the court. The accused can only blame themselves if they did not." (Emphasis supplied) ::: Downloaded on - 24/06/2024 20:33:23 :::CIS 34
41. Thus, no advantage can be derived by the prosecution from the part of the statements admitted by these witnesses
42. Sunder Lal (PW3) stated that he was on night duty on .
4.4.2013 at Gate Nos.1 and 2. He heard some noise and informed his senior. His senior asked him to see what had happened. He saw some persons knocking at the office of Excise and Taxation with swords. Thereafter, he closed the gates and entered inside.
The vehicles came out of the gate. Two guards were with him.
One person was lying on the road. He informed his senior, who informed the Police. The Police came to the spot. He did not support the prosecution case regarding the recovery. He stated in his cross-examination that all assailants were with muffled faces. Jhuggies were located at a distance of 150-200 mtrs. away from the place of the incident. The spot was not visible from Jhuggi.
43. This witness has also stated that all assailants were with muffled faces, which is the version of Avtar Singh (PW2).
This witness was also not re-examined to clarify his testimony in the cross-examination regarding the assailants being with muffled faces. Hence, his testimony will make it difficult to rely upon the identification of the assailants.
::: Downloaded on - 24/06/2024 20:33:23 :::CIS 3544. Hameer Chand (PW4) stated that he was on duty with other staff members. He heard a noise and went to the toilet. No one came inside the office. He came out of the toilet after the .
arrival of the police. He was permitted to be cross-examined. He denied that one boy came to the office followed by 8-10 persons who gave beating to the boy. He denied the previous statement recorded by the police. He stated in his cross-examination by defence counsel that he did not know the accused persons nor had he seen them on the spot. Again this witness has not supported the prosecution case regarding the identity of the assailants.
45. Rajnish Sharma (PW5) stated that he was posted as an Excise & Taxation Inspector. He was on duty on 3.4.2013. He heard the noise of dragging something at about 10-10.30 PM. All of them went inside the bathroom. They remained inside the bathroom and came out after two hours and thereafter they went to their quarters. They came to the office in the morning. The police took the samples. He was also permitted to be cross-
examined. He denied that one boy came to the office who bolted the door from inside the office. He denied that 8-10 persons followed him and knocked at the door. He denied that he had ::: Downloaded on - 24/06/2024 20:33:23 :::CIS 36 disclosed the names of Jona, Kankal, Honey, Bhau, Bhuru, Todu, Rinku and others to the police. He stated in cross-examination by defence that he had not seen the accused on the spot and he .
did not know their names even on the date of deposition. Again, the testimony of this witness does not establish the presence of the accused on the spot.
46. Suresh Kumar (PW6) stated that he was on duty with Inspector Rajnish and Hameer Chand in April 2013. He heard the noise of the breaking of glass. One person came inside the office.
They closed the window of the office and went inside the bathroom. They were taken out of the bathroom by the police after about 1½-2 hours. The police took the samples from the spot. He was permitted to be cross-examined. He denied that 8- 10 persons followed the boy. He denied the previous statement recorded by the police. He stated in cross-examination by the defence that he had locked himself in the bathroom from inside and did not see what happened outside. Again, the testimony of this witness does not establish the identification of the accused.
47. Sukhdev (PW16) stated that he and other persons were standing near the Truck parking at 11.30 PM. Sunil and Avtar came to the spot in a Bolero. Both alighted from the vehicle ::: Downloaded on - 24/06/2024 20:33:23 :::CIS 37 and stood near them. Suddenly they were attacked by Jona, Kakal, Bhuru, Bhau, Honey, Todu, Rinki and 2-3 other persons.
Kakal and Jona had pistols and swords in their hands. Bhau, .
Bhuru, Todu and Honey had swords with them. Rinku had a danda. 2-3 persons had iron rods. They attacked the informant party with swords and danda and fired at them. They ran here and there to save themselves. Naresh alias Gutti ran towards the Toll Tax Barrier. The assailants damaged the windowpane of the vehicle and its headlights. They ran after Naresh towards the Toll Tax Barrier. He and Jagdish came together to the place from where the accused had run after Naresh. They heard the noise of firing near the Toll Tax Barrier. They got frightened and stood near the Toll Tax Barrier in the dark. They were able to see everything from there. There was one room of Excise near the Toll Tax Barrier. All the accused came out from the Toll Tax Barrier while holding Naresh. They brought him on the road near the Toll Tax Barrier and gave him beatings with danda and swords. He identified Kakal, Jona, Bhuru, Bhau, Honey, Todu and Rinku. The other persons present in the Court were also amongst them on the spot while attacking Naresh. He knew them by face.
He and Jagdish went near Naresh, who was lying in a serious ::: Downloaded on - 24/06/2024 20:33:23 :::CIS 38 condition. He was crying. He had injuries on his head, foot, legs, stomach and other parts. He stated in his cross-examination that he had put the signatures on his statement under Section 154 .
Cr.PC (Ex.PW16/B). His statement was recorded by the police on the same day. He was confronted with various parts of the previous statement but since these omissions were not proved by the Investigating Officer, therefore, not much advantage can be derived from these omissions. (please see Sanjay Tomar v. State of H.P., 2024 SCC OnLine HP 1868 para 22 to 30). He denied that he was named as an accused in FIR No. 66 of 2012, registered at Police Station Kiratpur Sahib for the commission of an offence punishable under Section 307 of IPC. He admitted that he is also known as Sonu, a resident of Village Behal. He admitted that FIR No. 66 of 2012 was registered against Sonu and Naresh Kumar alias Gutti. He admitted that his name was mentioned with Naresh in FIR No. 64/2012 and 42/2013. He remained in the employment at Toll Tax Barrier for two days. The Toll Tax Barrier belonged to Raman Rana and Company. Dilbag Singh Rana was in charge of the Toll Tax Barrier. He admitted that one FIR was lodged against him regarding the dacoity at Gharamora.
They ran from the spot immediately after hearing the noise of ::: Downloaded on - 24/06/2024 20:33:23 :::CIS 39 the gunshot. They did not inform the police about the incident or the names of the assailants. He volunteered to say that he was frightened. Police came after 25 minutes and he did not disclose .
the name of the assailants to the police on its arrival. He was taken in the Ambulance but did not inform the police about the names of the assailants. He denied that he had not disclosed the names of the accused before recording his statement by the police. He denied that the assailants were with muffled faces. He admitted that the Toll Tax Barrier at Gharamora was with Sunil and he was working with Sunil on the barrier. He admitted that the barrier at Gharamora was purchased by some party from Haryana on 1.4.2013, who had kept their own employees. He was not retained by the new lessor and was interested in working at Bagheri. Kapila had employed him and Naresh Kumar at Bagheri.
They went towards the Shanty (Jhuggi) adjoining the road. He admitted that an FIR was registered by Surjeet Singh, father of accused Jona, against him in Police Station Anandpur Sahib. He admitted that many trucks used to be parked for loading and unloading near the cement plant during the daytime and the night.
::: Downloaded on - 24/06/2024 20:33:23 :::CIS 4048. This witness has given the reason for his presence on the spot that he was employed by Dilbag Singh Rana. Dilbag Singh Rana was not examined before the Court to corroborate his .
testimony and was given up as being formal. This witness was not formal because Dy.S.P. Bir Bahadur (PW42) admitted in his cross-examination that Dilbag Singh Rana was the owner of the barrier and had denied that he had engaged Sukhdev Singh and Naresh as employees and they were on duty on that night at the barrier. This statement made by Bir Bahadur is not a legal piece of evidence because it seeks to prove the statement made by Dilbag Singh Rana to the police during the investigation which is hit by Section 162 of Cr. P.C. and is inadmissible being hearsay. It was laid down by the Hon'ble Supreme Court in Ram Kishan v.
State of U.P., (2005) 9 SCC 736 : (2006) 1 SCC (Cri) 603: 2004 SCC OnLine SC 1063 that the statement made by a witness to the investigating officer cannot be proved in a Court as it is hearsay.
It was observed:
"8. Another contention urged by the appellants' counsel is that the post-mortem showed that the stomach of the de- ceased was empty. According to the learned counsel, PW 1 and the deceased had left the house in the morning and they must have taken food and that the prosecution story must be false, for the reason that the incident must have taken place somewhere during the night and that is why the post-mortem evidence is to the effect that the stom-::: Downloaded on - 24/06/2024 20:33:23 :::CIS 41
ach of the deceased was empty. There is no direct evidence as to whether the deceased had taken any food in the morning. The counsel for the appellants pointed to the state- ment given by the investigating officer during the cross-ex- amination in which he had admitted that the father-in-law .
had stated to him that the deceased had taken breakfast in the morning and thereafter left the house. The father-in-law of the deceased was not examined as a witness. Therefore, the statement given by the investigating officer must have been based on the statement of the father-in-law of the deceased recorded under Section 161 of the Code of Criminal Procedure. The statement given by the investigating officer regarding this fact is not directly admissible in law. In the absence of any evidence to the effect as to whether the deceased had taken food or not before leaving the house on 12-10-1979, the findings of the doctor to the effect that the stomach of the deceased was empty are of no consequence. (Emphasis supplied)
49. However, the examination of Dilbag Singh was essential to corroborate the testimony of Sukhdev Singh regarding his employment to show his presence on the spot.
Hence, an adverse inference has to be drawn against the prosecution for withholding Dilbag Singh.
50. This witness claimed that he and Jagdish Singh had concealed themselves near the Jhuggis (Shanties) and they saw the incident from those Shanties. Sunder Lal (PW3) stated in his cross-examination that Jhuggis were located at a distance of 150-250 mtrs. away from the place of the incident and the place of the incident was not visible from Shanties. Thus, the statement of Shankar Lal makes the testimony of Sukhdev's ::: Downloaded on - 24/06/2024 20:33:23 :::CIS 42 doubtful that he was in a position to see the incident from the Jhuggis.
51. The site plan (Ex.PW42/B) shows the position of the .
spot. Banyan trees and Jhuggi have been shown at a corner at Point 'K'. The Excise Office is shown at Point 'A' towards the other side of the room. Wine shop and Toll Tax Barrier are shown towards the side where the Jhuggis are located. The place where the dead body was shown is in the middle of the road and keeping in view the location of the Jhuggis, the wine shop and Toll Tax Barrier Post, the version of Sunder Lal appears to be correct that the place of incident is not visible from Jhuggis.
52. Sukhdev's statement recorded under Section 154 of Cr.P.C. shows the time of recording the same at 4.30 PM at FRU, Nalagarh. Bir Bahadur (PW42) stated in his cross-examination that the statement was recorded by him almost at the same time when the postmortem was being conducted by the Medical Officer on the dead body. The report of the postmortem (Ex.PW28/A) reads that the examination of the dead body was conducted on 4.4.2013, at Noon. The time of the receipt of the body is mentioned as 4.4.2013 at 11.15 AM. The statement of Bir ::: Downloaded on - 24/06/2024 20:33:23 :::CIS 43 Bahadur clearly shows that the statement was recorded much later and was ante-timed.
53. There is extrinsic evidence to show that the statement .
was not recorded at the time mentioned in the report. The inquest report (Ex.PW27/A) reads that Sukhdev Singh made a statement that on 3.4.2013, at about 11.40 AM, Naresh and his friends were attacked with swords, rods, and pistols. Naresh was seriously injured. Jagdish and Avtar Singh were seriously injured.
This inquest report does not mention the name of any of the assailants.
54. It was laid down by the Hon'ble Supreme Court in Chotkau v. State of U.P., (2023) 6 SCC 742 that there are external checks to show that the FIR was lodged at the time when it was stated to have been lodged and one of them is sending the FIR with the inquest report and the second is promptly sending it to the Magistrate. It was observed.
60. On the importance of promptitude, both in the registration of the FIR and in the transmission of the same to the court, reliance is placed by Shri Nagamuthu, learned Senior Counsel on the following passage in Meharaj Singh v. State of U.P. [Meharaj Singh v. State of U.P., (1994) 5 SCC 188: 1994 SCC (Cri) 1391] : (SCC pp. 195-96, para 12) "12. FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at ::: Downloaded on - 24/06/2024 20:33:23 :::CIS 44 the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the .
weapons, if any, used, as also the names of the eyewitnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of the delay, the FIR not only gets bereft of the advantage of spontaneity, but danger also creeps in with the introduction of a coloured version or exaggerated story. With a view to determine whether the FIR was lodged at the time it is alleged to have been recorded, the courts generally look for certain external checks. One of the checks is the receipt of the copy of the FIR, called a special report in a murder case, by the local Magistrate. If this report is received by the Magistrate late it can give rise to an inference that the FIR was not lodged at the time it is alleged to have been recorded, unless, of course, the prosecution can offer a satisfactory explanation for the delay in dispatching or receipt of the copy of the FIR by the local Magistrate. The prosecution has led no evidence at all on this behalf. The second external check equally important is the sending of a copy of the FIR along with the dead body and its reference in the inquest report. Even though the inquest report, prepared under Section 174CrPC, is aimed at serving a statutory function, to lend credence to the prosecution case, the details of the FIR and the gist of statements recorded during inquest proceedings get reflected in the report. The absence of those details is indicative of the fact that the prosecution story was still in an embryo state and had not been given any shape and that the FIR came to be recorded later on after due deliberations and consultations and was then ante- timed to give it the colour of a promptly lodged FIR. In our opinion, on account of the infirmities as noticed above, the FIR has lost its value and ::: Downloaded on - 24/06/2024 20:33:23 :::CIS 45 authenticity and it appears to us that the same has been ante-timed and had not been recorded till the inquest proceedings were over at the spot by PW 8."
61. While reiterating the above principles, a note of .
caution was also added by this Court in Bhajan Singh v. State of Haryana [Bhajan Singh v. State of Haryana, (2011) 7 SCC 421: (2011) 3 SCC (Cri) 241]. Paras 28 to 30 of the said decision read as follows: (SCC p. 431) "28. Thus, from the above, it is evident that the Criminal Procedure Code provides for internal and external checks: one of them being the receipt of a copy of the FIR by the Magistrate concerned. It serves the purpose that the FIR be not ante-timed or ante-dated. The Magistrate must be immediately informed of every serious offence so that he may be in a position to act under Section 159CrPC if so required. Section 159CrPC empowers the Magistrate to hold the investigation or preliminary enquiry of the offence either himself or through the Magistrate subordinate to him. This is designed to keep the Magistrate informed of the investigation so as to enable him to control the investigation and, if necessary, to give appropriate direction.
29. It is not that as if every delay in sending the report to the Magistrate would necessarily lead to the inference that the FIR has not been lodged at the time stated or has been ante-timed or ante-dated or investigation is not fair and forthright. Every such delay is not fatal unless prejudice to the accused is shown. The expression "forthwith" mentioned therein does not mean that the prosecution is required to explain the delay of every hour in sending the FIR to the Magistrate. In a given case, if the number of dead and injured persons is very high, a delay in dispatching the report is natural. Of course, the same is to be sent within a reasonable time in the prevalent circumstances.
30. However, an unexplained inordinate delay in sending the copy of the FIR to the Magistrate may ::: Downloaded on - 24/06/2024 20:33:23 :::CIS 46 affect the prosecution case adversely. An adverse inference may be drawn against the prosecution when there are circumstances from which an inference can be drawn that there were chances of manipulation in the FIR by falsely roping in the .
accused persons after due deliberations. The delay provides a legitimate basis for suspicion of the FIR, as it affords sufficient time for the prosecution to introduce improvements and embellishments. Thus, a delay in dispatch of the FIR by itself is not a circumstance that can throw out the prosecution's case in its entirety, particularly when the prosecution furnishes a cogent explanation for the delay in dispatch of the report or the prosecution case itself is proved by leading unimpeachable evidence."
r (emphasis supplied)
55. This position was reiterated in Mohd. Muslim v. State of U.P., (2023) 7 SCC 350, wherein it was observed: -
13. The chick FIR report was sent to the Court on 8-8-1995 with a delay of about 4 days. It is worth mentioning that FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence especially for the purpose of appreciating the evidence adduced at the trial.
It is for this reason that the infirmities, if any, in the FIR cast doubt on its authenticity. The FIR in such cases may also lose its evidentiary value. In Meharaj Singh v. State of U.P. [Meharaj Singh v. State of U.P., (1994) 5 SCC 188: 1994 SCC (Cri) 1391], it has been opined that on account of the infirmities such an ante-timing of the FIR loses its evidentiary value. Thus, this entitles the accused to be given the benefit of the doubt.
56. In the present case, there is nothing to show that the copy of the FIR was attached to the inquest report. Had the FIR ::: Downloaded on - 24/06/2024 20:33:23 :::CIS 47 been attached to the inquest report, it would have mentioned the details of the assailants.
57. Further, the FIR was received by the learned .
Magistrate on 04.04.2013 at 9:45 am. No reason was assigned for sending the FIR after the lapse of nearly 5 hours of its registration. Hence, it is highly doubtful that the FIR was lodged on 04.04.2014 at 4:40 am.
58. Dr. S.K. Raghav examined Avtar Singh and Jagdish. An application (Ex.PW30/C) was filed for their medical examination.
It was mentioned in the application that Avtar Singh and Jagdish Singh were attacked by Jona, Kakal, Goldy, Bhuru, Todu and others with swords and rods. Naresh was murdered in the incident. Significantly, Goldy was not arrayed as an accused. His name has not been mentioned anywhere except in this document. The fact that the application made for the medical examination of the injured mentions the name of Goldy which was subsequently removed and further mentions the names of only four persons: Jona, Goldy, Bhuru and Todu in opposition to Jona, Kakal, Todu, Bhuru, Honey, Bau, Rinku mentioned in the statement under Section 154 Cr.PC (Ex.PW16/B) shows that the names of the assailants were not fixed till the time of the ::: Downloaded on - 24/06/2024 20:33:23 :::CIS 48 examination of Avtar and Jagdish. The fact that the witnesses Sunil Kumar, Avtar Singh and Sunder Lal had stated that the assailants could not be identified on the spot as they had muffled .
faces, makes it probable that the names of the assailants were not known to the informant party and the names of the accused were mentioned subsequently after due deliberations.
59. The reason for the assault was mentioned in the statement as the previous enmity and the case registered against the assailants in the Police Station Anandpur Sahib. This reason was mentioned not only in the statement recorded under Section 154 Cr.PC but it was stated on oath that Bhuru had attacked Naresh and caused injury to his arm because a case was pending against him. However, no such FIR was brought on record and the cross-examination of the witness and the FIRs brought on record by the defence show that FIR was registered against Sukhdev and Naresh at the instance of the accused. Further, the FIR was registered by Surjeet, father of Jona, at Anandpur Sahib against Sukhdev and Naresh. This also shows that the recital regarding the previous attack upon Naresh is not corroborated by evidence on record.
::: Downloaded on - 24/06/2024 20:33:23 :::CIS 4960. All these circumstances make it difficult to rely upon the testimony of Sukhdev.
61. Jagdish Singh (PW17) stated that he, Sonu, Laadi and .
Naresh were standing behind the Truck parking. Sunil came in his Bolero along with Tari at about 11.30 PM. They were standing with the other persons when they were attacked by Jona, Kakal, Todu, Bhuru, Bhau, Rinku and Honey. Jona and Kakal had pistols and sword-like weapons in their hands. Bhau, Bhuru, Todu and Honey had swords with them. Rinku had sticks and others had iron rods. The assailants fired at the informant party. He was attacked with the sword by one of the assailants. Naresh ran towards the Toll Tax Barrier and all the accused ran after him.
They heard the noise of a gunshot. He and Sukhdev concealed near Jhuggi. They saw the accused taking out Naresh from the Excise office. The accused brought Naresh on the road near the Toll Tax Barrier. The accused attacked Naresh with the sword.
The assailants ran away thereafter.
62. The testimony of this witness is inherently improbable. He has given the names of the accused and mentioned the weapons being carried by them. He stated at the same time that he was attacked with a sword by one of the ::: Downloaded on - 24/06/2024 20:33:23 :::CIS 50 assailants without mentioning any person. It is difficult to believe that he was in a position to see and identify other assailants but was unable to identify the person who had .
attacked him. Since the attack was caused by the sword, therefore, the assailant would have been quite near to this witness. The failure to identify his attacker would make it difficult to rely upon his identification of the other assailants.
63. He admitted in his cross-examination that he had not mentioned the names of Todu, Didar and Chindi to the police and these were mentioned on 10.4.2013. This shows that the names of these persons were introduced subsequently. This constitutes the improvement with time which would affect his credit adversely.
It was laid down by the Hon'ble Supreme Court in State of Orissa v. Brahmananda Nanda, (1976) 4 SCC 288: 1976 SCC (Cri) 596 that when the witness had not narrated the name of the accused as assailant for 1½ days, her testimony was suspect. It was observed:
"2. The entire prosecution case against the respondent rests on the oral evidence of Chanchala (PW 6) who claimed to be an eyewitness to the murder of Hrudananda, one of the six persons alleged to have been killed by the respondent. The learned Additional Sessions Judge be- lieved her evidence, but the High Court found it difficult to accept her testimony. The High Court has given cogent ::: Downloaded on - 24/06/2024 20:33:23 :::CIS 51 reasons for rejecting her evidence and we find ourselves completely in agreement with those reasons. We have carefully gone through the evidence of this witness, but we do not think we can place any reliance on it for the purpose of founding the conviction of the respondent. The evi-
.
dence suffers from serious infirmities which have been discussed in detail by the High Court. It is not necessary to reiterate them, but it will be sufficient if we refer only to one infirmity which, in our opinion, is of the most serious character. Though according to this witness, she saw the murderous assault on Hrudananda by the respondent and she also saw the respondent coming out of the adjoining house of Nityananda where the rest of the murders were committed, she did not mention the name of the respon- dent as the assailant for a day and a half. The murders were committed on the night of June 13, 1969, and yet she did not come out with the name of the respondent until the morning of June 15, 1969. It is not possible to accept the explanation sought to be given on behalf of the prose- cution that she did not disclose the name of the respon- dent as the assailant earlier than June 15, 1969, on account of fear of the respondent. There could be no question of any fear from the respondent because, in the first place, the respondent was not known to be a gangster or a con-
firmed criminal about whom people would be afraid, sec- ondly, the police had already arrived at the scene and they were stationed in the clubhouse which was just opposite to the house of the witness and thirdly, A.S.I. Madan Das was her nephew and he had come to the village in connection with the case and had also visited her house on June 14, 1969. It is indeed difficult to believe that this witness should not have disclosed the name of the respondent to the police or even to ASI Madan Das and should have waited till the morning of June 15, 1969, for giving out the name of the respondent. This is a very serious infirmity, which destroys the credibility of the evidence of this wit- ness. The High Court has also given various other reasons for rejecting her testimony and most of these reasons are, in our opinion, valid and cogent. If the evidence of this ::: Downloaded on - 24/06/2024 20:33:23 :::CIS 52 witness is rejected as untrustworthy, nothing survives of the prosecution case."
64. Jagdish Singh (PW17) further stated in his cross-
examination that he and other persons went inside the Jhuggis to .
conceal themselves. They remained inside the Jhuggis till the assailants ran away from the spot. Jhuggis were without any doors. The statement of this witness also shows that he was present in the Jhuggi and since the place of the incident is not visible from Jhuggis, hence it is difficult to rely upon his testimony regarding the incident.
65. Karam Jeet Singh (PW40) stated that he received a telephonic call on his mobile from Sukh Dev, who said that some altercation had taken place at the barrier. He accompanied Vijay Kumar to the Bagheri barrier on the motorcycle. He saw accused Kankal, Jona, Bhau, Bhuru, Todu, Rinku, Honey, Didar, Shindi and 2-3 other persons equipped with swords, revolvers and sticks assaulting his brother Naresh alias Gutti. Kankal was holding a revolver, whereas Jona was holding a Khanda and others were holding Kirpan. Accused persons ran away from the spot on seeing him. Kankal alias Daljit fired two shots. Naresh was lying in an injured condition.
::: Downloaded on - 24/06/2024 20:33:23 :::CIS 5366. Learned Trial Court held that the testimony of this witness was not reliable as his name was not cited by any witness. Even Sukhdev never told that he called Karam Jeet Singh .
who had arrived on the spot. The name of this person was not mentioned by any of the eyewitnesses. He did not sustain any injury. He claimed that the accused, armed with weapons, ran away on seeing him, however, it is not explained why the accused who had murdered one person and had injured others would spare him. Therefore, his testimony was rightly rejected by the learned Trial Court.
67. The Learned Trial Court relied upon the recovery of various articles to corroborate the testimonies of the eyewitnesses. The first item recovered by the police implicating the accused is Parna vide memo (Ex.PW3/A). This Parna was recovered in the presence of Suresh Kumar (PW6) and Sunder Lal (PW3).
68. Sunder Lal (PW23) did not support the prosecution case regarding the recovery. He stated that nothing was taken in possession by the police in his presence including the clothes. He was permitted to be cross-examined. He denied that parna was taken into possession by the police and it was sealed in a parcel ::: Downloaded on - 24/06/2024 20:33:23 :::CIS 54 after taking photographs. He denied that the memo (Ex.PW3/A) was read over and explained to him. He denied the previous statement recorded by the police. He refused to identify the .
Parana stated to have been recovered by the police. Thus, his testimony does not support the prosecution case regarding the recovery of Parna.
69. Suresh Kumar (PW6) stated that police took samples from the spot. No clothes were lying on the spot. Nothing else was taken from the room. He was permitted to be cross-
examined. He denied that one blue-coloured parna was found on the spot and the police took its photographs. He denied that parna was taken into possession by the police and it was sealed with four seals of impression 'N'. He denied the previous statement recorded by the police. He was shown parna but he refused to identify the same. Hence, it is apparent that this witness has also not supported the recovery of Parna.
70. Dy.S.P. Bir Bahadur (PW42) stated that he took samples from the spot. He also found a blood-stained scarf (parna) lying on the spot. He put it in a parcel and sealed the parcel with seal impression 'N'. He denied in his cross-
::: Downloaded on - 24/06/2024 20:33:23 :::CIS 55examination that no recovery of any scarf (parna) was effected vide memo (Ex.PW3/A).
71. The case property was deposited with HC Harvinder .
Kumar (PW32). He stated that Bir Bahadur deposited the parcels with him. He entered the case property at Serial No. 695. He admitted in his cross-examination that space was left in the malkhana register when the case property was deposited with him. He admitted that no space was left at Serial No.695 when entry No.10 was made. He admitted that there was a difference in pen, spacing and size of the words while making an entry at Serial No. 10. He volunteered to say that he made the entry at the relevant time but changed the pen. He admitted that there was a line closing the entry by using the pen. The photocopy (Ex. PX) of the malkhana register was retained on record. He denied that entry No.10 was incorporated subsequently.
72. A perusal of the copy of the malkhana register (Ex.PW32/A) shows that entry at Serial No. 10 was squeezed after entry No.9. entry No.10 is stated to be a Parna sealed with four impressions of seal 'N'. The rest of the entries were made in running hands with almost similar spaces whereas this entry was made with a different pen with closed space. The words of the ::: Downloaded on - 24/06/2024 20:33:23 :::CIS 56 entry are small. This shows that the entry was made subsequently to show that the Parna was recovered on 4.4.2015.
This entry will make it difficult to rely upon the statement of the .
Investigating Officer regarding the recovery of Parna and since the other two witnesses have not supported the prosecution's case regarding the recovery of Parna; therefore, the recovery of Parna has not been established beyond reasonable doubt.
73. The police relied upon the recovery of the sword (Ex.
P25 marked in the laboratory). As per the report of analysis, (Ex.PY), Ex.P25 was a metallic sword that was found packed in a metallic case, which measured about 82 cm. This sword is stated to have been recovered at the instance of Gurvir Singh vide memo (Ex.PW18/A). The memo reads that on 9.4.2013, Gurvir Singh alias Jona got recovered one Kirpan measuring 28 inches in length and 3 inches in width. It was put in a cloth parcel and the parcel was sealed with three impressions of seal 'M'. The seal impression was taken on a separate piece of cloth. Kirpan/sword was examined in the Laboratory. Report (Ex.PW33/A) shows that the parcel was sealed with three seals of seal 'M' which contained a sword (Ex. P25). The length of the sword with the sheath was 90 cm. The exhibits were sealed with the seals of the Physics and ::: Downloaded on - 24/06/2024 20:33:23 :::CIS 57 Ballistic Division. It was subsequently examined in the Biology and Serology Division and a Report (Ex. PX) was issued. Parcel (Ex. P25) was sealed with three seals of the Physics division. It .
contained a metallic sword that measured about 82 cm. The report also mentions that blood was detected on the sword (Ex.P25). Report (Ex.PY) mentions that one metallic sword was found in the metallic case which measured 82 cm. The DNA profile obtained from the sword (Ex. P25) matched with the DNA profile obtained from the blood-stained Parna, vest and jeans of deceased-Naresh Kumar. These reports show different lengths of the sword. The recovery memo mentions the length of the sword as 28 inches which corresponds to 71.12 cm. Its length was found to be 90 cms. in the Physics Division which got reduced to 82 cms. in the Biological and Serological Division. Thus, there is a discrepancy regarding the length of the sword mentioned in the memo (Ex.PW18/A) and various scientific reports. The discrepancy in the length makes it difficult to hold that the sword found on the spot was analysed in the laboratory.
74. The date 9.4.2013 was overwritten in the Memo (Ex.
PW18/A). Bir Bahadur (PW42) denied in his cross-examination that overwriting in the date was made to suppress the actual ::: Downloaded on - 24/06/2024 20:33:23 :::CIS 58 date. This denial is falsified by the fact that Bir Bahadur (PW42) had also obtained a sample seal 'M' (Ex.PW23/A), which mentions the dates 5.4.2013. The seal impression 'M bearing the .
date 5.4.2013 clearly shows that the parcel was sealed on 5.4.2013 but the date in the memo was altered to 9.4.2013 to show that the recovery was effected on 9.4.2013 and not on 5.4.2013.
75. Naseeb Singh (PW33) visited the spot as a Forensic Expert. He stated in his cross-examination that he had lifted the articles from the spot and handed them over to the police to preserve them. He had not mentioned the articles lifted from the spot. He volunteered to say that he had issued guidelines for the Investigating Officer as mentioned in his report. Bullets, swords, cartridges and firearms were seen by him on the spot. These were open at the spot. He handed them over to the police in open condition. This witness was not re-examined which means that his testimony that he had found bullets, swords, cartridges and firearms on the spot and handed them over to the police has remained unshattered. His testimony shows that the swords were lying on the spot at the time of the visit of Naseeb Singh. He had visited the spot on 5.4.2013 as per his report (Ex.PW33/B).
His statement and the sample seal 'M' show that the sword was ::: Downloaded on - 24/06/2024 20:33:23 :::CIS 59 recovered on 5.4.2013 lying on the spot but it was made to appear that the recovery was effected at the instance of Gurvir Singh alias Jona to implicate him with the commission of the crime.
.
Hence, no reliance can be placed upon the prosecution case that the recovery of the sword was effected at the instance of Gurvir Singh alias Jona and he cannot be held liable on the basis of the recovery.
76. The police have also relied upon the recovery of the T-shirt at the instance of accused-Harneet Singh. This recovery was effected vide memo (Ex.PW13/A) in the presence of Manjeet Kaur (PW13) and ASI Sanjay Kumar (PW26).
77. Manjeet Kaur (PW13) did not support the prosecution case. She stated that Himachal Police had not visited village Darti and accused Harneet Singh did not produce any clothes in her presence. She was permitted to be cross-examined. She denied that the police came to her village with Harneet Singh on 6.4.2013. She denied that Harneet Singh produced one black T-shirt, blue jeans and blue parna, which were sealed by putting five seals of seal 'R'. She admitted her signatures on the memo but explained that her signatures were obtained at the Police Station. She denied the previous statement recorded by the ::: Downloaded on - 24/06/2024 20:33:23 :::CIS 60 police. She stated in her cross-examination by learned counsel for the defence that no witnesses or accused were present at the time of taking of signatures. The accused had not produced .
anything and no parcel was prepared in her presence. It is apparent from her statement that she has not supported the prosecution case regarding the recovery and no advantage can be derived from the same.
78. Sanjay Kumar (PW26) is the other witness to recovery. He stated that they went to Village Darti, where the accused Harneet Singh produced one T-shirt, Jeans and Parna from his house. These were put in a cloth parcel and sealed by putting five seals of seal 'R'. The sample seal was taken on a separate piece of cloth. The parcel was seized vide memo (Ex.PW13/A). He denied in his cross-examination that on 6.4.2013, all the accused were present in the Police Station till 3.30 PM and entry No. 47/A was recorded to this effect in the Police Station. The house of accused-Harneet was identified by the Member, Gram Panchayat but no memo was prepared. No separate statement of witness Manjeet was recorded regarding the identification of the house. There was one almirah and bed in the room along with other household articles. No articles were ::: Downloaded on - 24/06/2024 20:33:23 :::CIS 61 placed on the bed. Photographs were not taken. He denied that witness Manjeet was not associated with the police.
79. The memo (Ex.PW13/A) reads that the accused got .
recovered a T-shirt, Jean Pants and one Parna kept on the bed of his room which were seized by the police. PSI Sanjay Kumar stated in his cross-examination that no articles were placed on the bed. This statement will make the recital of the memo suspect that the articles were recovered by the police and were kept on the bed. Hence, this recovery has also not been proved beyond reasonable doubt and cannot be used to implicate Harneet Singh.
80. Dy.S.P. Bir Bahadur (PW42) also recorded the statements of the accused under Section 27 of the Indian Evidence. Accused Daljeet Singh made a disclosure statement (Ex.PW19/A) on 8.4.2013 that he could get a motorcycle and a khanda recovered which were concealed by him. He also burnt the articles worn by him on the date of the incident. The statement (Ex.PW19/A) was reduced into writing. This statement is signed by witnesses Karamjeet Singh (PW40) and Gurdhian Singh (PW19).
::: Downloaded on - 24/06/2024 20:33:23 :::CIS 6281. Dy.S.P. Bir Bahadur (PW42) stated in his cross-
examination that he had not told the witness about the nature of the disclosure statement to be made by the accused. The witness .
arrived at about 10.00 AM. The statement was recorded by him at 11.30 AM. Daljeet was interrogated for about 10-15 minutes after the arrival of the witnesses. Daljeet made the statement after 35- 40 minutes of interrogation. He went to the spot to effect recovery. He arrived at Mangowal at 1.30 PM. He denied that Daljeet Singh was taken out from the lock-up at 11.00 AM and he was taken to the hospital along with other accused for their medical examination. He denied that the accused persons were brought at 3.30 PM. He admitted that as per the entry No. 22 and 34, the accused persons including Daljeet Singh were taken to the hospital at about 11.00 AM and were brought at 3.30 PM after the medical examination.
82. The cross-examination of Bir Bahadur (PW42) shows that the accused Daljeet Singh could not have made the statement at about 11.30 AM and could not have gone to Village Mangowal because the accused persons were taken for their medical examination at about 11.00 AM. This is corroborated by the entry in the daily diaries. Entry No.22A, dated 8.4.2013 made ::: Downloaded on - 24/06/2024 20:33:23 :::CIS 63 at 11.00 AM reads that the accused Gurvir, Gurcharan, Daljeet, Honey, Sukhvinder, and Ashok Kumar were taken out of the lock-up and were sent to FRU, Nalagarh in the vehicle bearing .
registration No. HP-12-8408 for their medical examination.
Entry No. 30A, dated 8.4.2013 made at 3.00 PM reads that the accused Gurvir Singh, Gurcharan Singh, Daljeet Singh, Harneet Singh, Sukhvinder Singh, Ashok Kumar were brought from FRU, Nalagarh after their medical examination. They were searched and were confined to the lock-up. The correctness of these entries was admitted by Bir Bahadur; hence, the same is not in dispute. These entries falsify the version of the prosecution that accused Daljeet Singh made a statement under Section 27 of the Indian Evidence Act on 8.4.2017 at about 11.30 AM and got the recovery effected at about 1.00 PM.
83. Gurdhian Singh (PW19) stated that he had gone to Police Station Nalagarh on 8.4.2013. Accused Kankal was sitting in the Police Station and was being interrogated by the police. He disclosed to the police about the motorcycle and Khanda/Talwar by saying that he could get the recovery of these articles effected.
He also told the police that he could get the clothes worn by him at the time of the incident recovered and show the place where ::: Downloaded on - 24/06/2024 20:33:23 :::CIS 64 the clothes were burnt. Memo (Ex.PW19/A) was prepared. He and Karamjeet Singh signed the memo. He stated in his cross-
examination that the deceased Naresh was related to him. He .
admitted that he was arrested in a case of attacking the accused while they were being taken to the Court and remained in custody. He had gone to the Police Station to inquire about the facts at about 10-10:15 AM. The entire proceedings were completed within 15 minutes. The police said on their arrival at the Police Station that they had to record the statement of Daljeet regarding the recovery of the motorcycle, sword and the plates where the clothes were kept. The accused was interrogated for 15-20 minutes. Recovery was effected after the disclosure statement but he was not present. The police asked four to five questions from the accused. The first question was where the sword was kept, on which the accused Kankal disclosed that the motorcycle and khanda/talwar were kept in the house. He did not know the 2nd, 3rd and 4th questions. No question was asked thereafter. He visited the Police Station at about 10:15 AM and remained in the Police Station for about 15 minutes.
84. The testimony of this witness shows that the police were already aware of the fact that the accused was to disclose ::: Downloaded on - 24/06/2024 20:33:23 :::CIS 65 the articles that is why the police told him that the statement of the accused was to be recorded regarding the recovery of the articles. Further, he stated that only 4-5 questions were asked .
and the statement was made within 10-15 minutes, which is contrary to the statement of the Investigating Officer, who had stated that the accused was interrogated for about 35-40 minutes and about 15-20 minutes after the arrival of the witnesses. He stated that he arrived at about 10:15 am and remained in the police station for about 15 minutes. This means that as per him the statement was made before 10:30 am. Bir Bahadur on the other hand stated that the statement was made at about 11:30 AM.
85. Karamjeet Singh (PW40) stated that accused Daljeet made a statement in his presence and the presence of Gurdhian that he had concealed a country-made revolver and motorcycle and he could get them recovered. He told the police that he had burnt the clothes worn by him on the night of the incident and he could point out the place. He stated in his cross-examination that he had gone to the Police Station on his own. Gurdhian had accompanied him to the Police Station to inquire about the progress of the case. They had visited the Police Station before ::: Downloaded on - 24/06/2024 20:33:23 :::CIS 66 noon but he could not tell the time when they arrived in the Police Station. The statement was being recorded. He remained in the Police Station for about 10 minutes. He denied that he had .
attacked the accused when they were being taken to the Court. He admitted that an FIR was lodged regarding this incident but claimed that the FIR was false. Only one police official was present in the room, who was recording the statement.
86. This witness had tried to introduce himself as an eyewitness. When there is no evidence that he had witnessed the incident, he is the brother of the deceased. He claimed that he and Gurdhian had gone together to the Police Station which was not asserted by Gurdhian. He stated that when the statement of the accused was being recorded which is contrary to the statement of the Investigating Officer and Gurdhian, who stated that the accused was interrogated after the arrival of the witnesses and the accused made a disclosure statement thereafter. These infirmities and especially the fact that the accused were taken for their medical examination on the same day at 11.00 am will make it difficult to rely upon the fact that any such disclosure statement was made.
::: Downloaded on - 24/06/2024 20:33:23 :::CIS 6787. There is no other incriminating evidence against the accused. The police effected the recovery of the clothes at the instance of the accused, but these are not connected to the .
commission of the crime. No witness deposed that the accused were wearing the clothes on the date of the incident stated to have been recovered at their instance. Nothing incriminating was found on the clothes; hence the recovery of the clothes will not help the State.
88. The evidence on record shows that the Investigating Officer tried to establish that he had effected the recovery of Parna on spot with other articles, which is highly suspicious as shown above. He tried to show that the recovery of blood stained sword was effected at the instance of accused Gurdev on 9.4.2013, whereas the evidence on record shows that the sword was recovered on the spot on 05.04.2023. He tried to show that the accused Daljeet Singh made the disclosure statement when he was taken to the hospital for the medical examination. There are reasons to believe that the FIR was ante-timed. All these circumstances show that the investigation in the present case is not fair and its benefit will go to the accused.
::: Downloaded on - 24/06/2024 20:33:23 :::CIS 6889. In the present case, there is no satisfactory evidence to establish the involvement of the accused. The identification of the assailants is suspect. It is also doubtful that Sukhdev (PW16) .
and Jagdish Singh (PW17) could have witnessed the incident and identified the accused. Keeping in view the previous enmity between them and the accused, the possibility of false implication cannot be ruled out. The investigation is not fair and it appears that an attempt was made to create the evidence. The integrity of the case property is not established. Hence, the accused could not have been convicted in such circumstances.
Learned Trial Court had failed to properly appreciate the evidence and the judgment and order passed by the learned Trial Court are not sustainable and deserve to be set aside.
90. In view of the above, the present appeals are allowed and the judgment and order passed by the learned Trial Court are set aside. The accused persons are acquitted of the commission of offences with which they were charged.
91. The fine amount, if deposited, be refunded after the expiry of the period of limitation for filing the appeal, in case no appeal is preferred.
::: Downloaded on - 24/06/2024 20:33:23 :::CIS 6992. The accused is ordered to be released immediately, if not required in any other case.
93. In view of the provisions of Section 437-A of the Code .
of Criminal Procedure the appellants are directed to furnish their personal bonds within four weeks in the sum of ₹25,000/- with one surety each in the like amount to the satisfaction of the learned Registrar (Judicial) of this Court/learned Trial Court, which shall be effective for six months with stipulation that in the event of Special Leave Petition being filed against this judgment, or on grant of the leave, the appellants on receipt of notice(s) thereof, shall appear before the Hon'ble Supreme Court.
94. Records be sent back forthwith. Pending applications, if any, also stand disposed of.
(Vivek Singh Thakur) Judge (Rakesh Kainthla) Judge 24th June, 2024 (Chander) ::: Downloaded on - 24/06/2024 20:33:23 :::CIS