Himachal Pradesh High Court
Vijay Kumar vs State Of Himachal Pradesh on 5 July, 2024
Bench: Tarlok Singh Chauhan, Sushil Kukreja
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. A. No. 214/2019 Reserved on: 2.7.2024 Decided on : 5.7.2024 Vijay Kumar ....Appellant Versus State of Himachal Pradesh ....Respondent Coram:
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Mr. Justice Sushil Kukreja, Judge.
Whether approved for reporting?1 No For the Appellants: Mr. Ajay Kochhar, Sr. Advocate with Mr. Anubhav Chopra and Mr. Bhairav Gupta, Advocates.
For the Respondent: Mr. I.N. Mehta, Mr. Y. W. Chauhan, Sr. Additional Advocate Generals, Mr. Ramakant Sharma, Mr. Navlesh Verma, Ms. Sharmila Patial, Addl. A.Gs., Mr. J. S. Guleria and Mr. Raj Negi, Dy.A.Gs.
__________________________________________________________________ Justice Tarlok Singh Chauhan, Judge The appellant/convict has filed the instant appeal against the judgment and order, dated 19.3.2019 and 25.3.2019 respectively passed by the learned Additional Sessions Judge-I Una, whereby the appellant has been 1 Whether reporters of the local papers may be allowed to see the judgment? Yes.2
convicted and sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.10,000/- and in default of payment of fine, simple imprisonment for six months under Section 452 of the Indian Penal Code (for short, "IPC"); rigorous imprisonment for life and to pay a fine of Rs.1,00,000/- under Section 302 IPC; and rigorous imprisonment for five years and to pay a fine of Rs.10,000/- and in default of payment of fine, simple imprisonment for six months under Section 325 IPC. The substantive sentences of imprisonment, as imposed against the convict, were ordered to run concurrently.
2 The case of the prosecution, when chronologically placed, is that on 25.03.2016, H.C Kewal Krishan, Investigating Officer, Police Post Tahliwal along with HC Mukhwant Singh, on receiving information from 108 Ambulance that two persons have been injured in a scuffle and are being brought to Civil Hospital, Haroli, went to said civil hospital. The MLCs of both the injured were obtained. However, since they were unfit to give statement, as per the opinion of the medical officer, statement of PW14 Ram Padarath under section 154 Cr.P.C was recorded and case FIR 3 No. 69 of 2016 came to be registered at Police Station Haroli, District Una under sections 452, 323, 307 IPC, wherein it was reported that on 25.03.2016 at about 9.00 P.M., when the complainant, after return from work reached near his hut, he heard screams of his father from the side of hut. He accordingly rushed towards the hut of his father and noticed that convict, who was known to him, was inflicting blows on his father with bamboo stick and the convict sprinkled kerosene oil on his father from the lamp kept in the hut and also set dhoti of his father on fire with the help of match stick. 3 Further allegations were that the convict had also given blow to his mother PW16 Smt. Poonam Devi and caused injuries to her. On alarm being raised by the complainant side, people from the adjacent huts gathered and the fire on the dhoti of his father was extinguished, but with great difficulty. On seeing the people around, the convict fled from the spot on motorcycle. The statement of complainant came to be exhibited during the trial as Ext. PW5/B. 4 It is further case of the prosecution that the injured Poshan Mahanto and his wife Poonam were referred to Regional Hospital, Una for further treatment from where the 4 injured Poshan Mahanto was referred to PGIMER, Chandigarh, where he ultimately succumbed on 30.03.2016 due to shock of the injuries and accordingly, the case was then converted to section 302 IPC.
5 During the course of investigation, the Investigating Officer, ASI Suresh Kumar, Police Post Tahliwal, visited the spot and prepared spot map Ext PW-19/B. The complainant Ram Padarath, vide memo Ext PW-2/B, produced the blood stained bamboo stick and kerosene oil lamp to the police in the presence of PW2 Vijay Kumar and PW5 HC Kewal Krishan. The convict was arrested on 26.03.2016 at 8:30 PM. Motorcycle allegedly used by the convict while fleeing from the spot bearing No. HP-72A-7301 was taken into possession from its owner PW1 Hari Pal vide memo Ex. PW-1/A in the presence of PW3 Balbir Singh and Purshottam Lal (not-examined) on 28.03.2016.
6 After investigation, the investigating agency concluded that on 25.03.2016, the convict visited the hut of deceased Poshan Mahanto to purchase goat meat. Some altercations took place on the issue of purchase of meat and the convict started beating the deceased Poshan Mahanto with 5 bamboo stick and also set dhoti of deceased on fire by sprinkling kerosene oil on it from the lamp kept in the hut. Smt. Poonam Devi, wife of deceased, tried to intervene but she was also assaulted by the convict and simple and grievous injuries were inflicted upon her also. The son of deceased reached the spot when blows were being inflicted upon his father by the convict. The incident was also witnessed by PW15 Rinku Devi, daughter-in law of deceased, who had reached the spot on hearing the screams. Many other people had also gathered on the spot from the adjoining huts. The appellant had left the spot on motorcycle. 7 On completion of investigation, challan was presented before the Court. The convict was charged with the aforesaid offence(s), to which he pleaded not guilty and claimed trial.
8 In order to prove its case, the prosecution examined as many as 21 witnesses. Thereafter, statement of the convict was recorded under Section 313 Cr.P.C., wherein he claimed himself to be an innocent and claimed trial. 6 9 The learned trial court, after recording the evidence and evaluating the same, convicted and sentenced the appellant, as aforesaid.
10 It is vehemently argued by Mr. Ajay Kochhar, learned Senior Advocate, assisted by Mr. Anubhav Chopra, Advocate, that the findings recorded by the learned trial court are totally perverse and therefore not sustainable. On the other hand, Mr. Navlesh Verma, learned Additional Advocate General, would argue that the findings recorded by the learned trial court are based on evidence brought on record, which has been correctly appreciated by the learned trial court and only thereafter findings of conviction have been recorded and thus call for no interference.
11 We have heard the learned counsel for the parties and have also gone through the record of case carefully. 12 Having perused the entire record, we find that the case of the prosecution rests upon the following sets of evidence:
A. Statements of the alleged eye-witnesses i.e. PW- 2 Vijay Kumar, to whose house PW15 Rinku Devi came running and informed about 7 the incident and who in turn accompanied her and witnessed the incident and rescued the deceased from the clutches of the convict; son of the deceased; complainant PW14 Ram Padarth; daughter-in law of deceased PW15 Rinku Devi and wife of deceased PW16 Poonam Devi.
B. The recovery of the motorcycle No. HP-72A- 7301 allegedly used by the convict for fleeing from the spot belonging to PW1 Hari Pal in the presence of PW-3 Balbir Singh.
C. The medical evidence i.e. PW12 Dr. Rajesh who initially treated the deceased and his wife; PW9 Dr. Gajanan, who gave opinion of fracture of wrist bone of the left hand of PW16 Poonam and PW4 Dr. Murli who conducted the post- mortem of the decease and gave opinion regarding cause of death, which was on account of shock due to injuries.
D. The forensic evidence, Ext PW4/F, PW4/G, the DNA report Ext PW20/A and the recovery of the danda and the kerosene oil lamp.
13 Before we delve into the aforesaid points, it needs to be noticed that it is admitted case of the prosecution that there is neither any enmity nor motive for the convict to commit the offence, rather the case of the prosecution is that 8 the incident took place at the spur of the moment because of purchase of goat meat.
14 According to the prosecution, the convict demanded 4 Kg of meat, as stated by PW16 Poonam Devi, whereas, in turn the deceased disclosed that only 1 Kg of meat was left and for this reason, the convict assaulted the deceased with danda and after putting kerosene oil put the dhoti of the deceased on fire and fled away on motorcycle. 15 Further, admitted case of the prosecution is that the incident took place after 9.00 P.M. and neither was there electricity in the hut nor adjoining to the huts and the light was available only from the kerosene oil lamp. 16 It was the defence of the convict that he is not the assailant and thus it is a case of mistaken identity. Some people from the adjoining State dealing with the trade of narcotics are involved in the incident as the deceased was a drug peddler. The defence established on record that the deceased was facing a trial of NDPS Act as was stated by PW5 HC Krishan Kumar, PW14 Complainant and PW-19 the Investigating Officer, in their respective statements. 9 17 Bearing these facts in mind, we would now discuss point-wise set of evidence.
A. Statements of the so-called eye-witnesses. 18 Having perused the statements of PW14, PW15 and PW16 very carefully and bearing in mind that they are son, daughter-in-law and wife of the deceased, we really do not find their statements to be reliable much less trustworthy for the following reasons:-
19 PW2 Vijay Kumar, as per the case of the prosecution, was the person, who after being informed by PW15 about the fact that the convict was assaulting the deceased took her on his motor cycle to the hut of deceased and apart from witnessing the incident rescued the deceased from the clutches of the convict, however when examined in the Court, this witness did not support the case of the prosecution and was consistent that PW15 had not disclosed to him that the convict had assaulted the deceased and in fact did not support the case of the prosecution that he witnessed the incident or rescued the deceased from the clutches of the convict.
1020 From the conjoint reading of the testimonies of the related witnesses i.e. PW14, PW15 and PW16, it is evident that they had not seen the incident in the manner as alleged by the prosecution and appear to have given the statements after due deliberations to prove involvement of the convict in the present case.
21 This is clearly evident from the fact that PW14 complainant, who is none other than the son of the deceased has substantially deviated, while appearing in the witness box, from the version given by him to the police under Section 154 Cr. P.C., Ext PW-5/B. Though he is claimed to be an eye- witness but in the statement before the court, he neither supported the case of the prosecution qua the fact that he witnessed the incident in the manner as stated by him in his initial version Ext. PW-5/B nor saw the convict throwing kerosene oil from the kerosene lamp and thereafter lighting the dhoti of the deceased on fire with a match-stick. Not only this, he was declared hostile, but was cross-examined only on one account i.e. regarding pouring kerosene oil and setting dhoti on fire but he did not support the case of the prosecution, and what is still worse is that he was never confronted by the 11 prosecution regarding his statement of his having seen the incident as was disclosed in the FIR.
22 While making statement in the court, PW14 did not support the case of the prosecution that he had witnessed the convict beating the deceased or his mother as was otherwise claimed by him in his statement under Section 154 Cr.P.C, but rather stated that when he reached near the hut after hearing the screams, he found the convict leaving the spot on his motorcycle.
23 Interestingly, this witness is totally silent about the presence of PW15 Rinku Devi and his mother PW16 Poonam Devi at the scene of occurrence. As per his version in the court, his brother Radhe Shyam, sister-in law, Rinku Devi and nephew Parshu Ram took his father to Bathari Hospital, which again appears to be highly improbable because had he been there, he being the son would have, in all normal circumstances, accompanied the other relatives to the hospital and the deceased would not have been taken to the hospital by other relatives given the fact that there was no one left in the family to be looked after and taken care of. 12 24 Even otherwise, this version is contrary to the case of the prosecution, wherein the deceased was taken to Civil Hospital Haroli and not Bathari Hospital, which admittedly are different places and are situated at a distance of 15 kms from each other. It shall be apt to reproduce relevant portion of the statement of PW14, which reads as under:-
"I was coming to my Jhugi from my work. When I reached nearby my jhungi, I heard sounds "Baap Rey Maar Diya". I reached at Junghi. I found that Vijay is leaving by giving beating to my father. Vijay is present in the court. I saw that accused Vijay started the motorcycle and left. My father was hit by bamboo stick. Thereafter, my brother Radhe Shyam, my sister-in lawRinku Devi and my nephew Persu Ran took my father to Bathari Hospital. The medical officer of Bathari Hospital asked us to take my father to Chandigarh. Then we shifted my father to PGI Chandigarh. My father died at PGI. The dead body of my father was handed over to me after Post-mortem vide memo Ext PW-11/A. The police of Una district had also reached at PGI. The police visited the spot and took into possession the broken bamboo stick, lamp of kerosene oil, vide memo Ext PW- 2/B. The lamp was put into a cloth parcel. Police had recorded my statement Ext. PW-5/B. It bears my thumb impression. I had not seen the accused putting on fire the 'Dohti' of my father by throwing kerosene oil from the lamp."13
25 Thus, the only inference which can be drawn from the aforesaid statements is that PW14 had not witnessed the incident and the statement under section 154 Cr.P.C was got recorded by him belatedly after due deliberations. This finding would be fortified from further discussion. 26 PW15 Rinku Devi also does not appear to be an eye-witness of the incident as claimed by her. Falsity of the version of PW15 is evident from the fact that she narrated totally a new story of the convict having visited the hut of deceased in earlier part of the day and having threatened the deceased to see him in the later night, which otherwise was not the case of prosecution.
27 It is only PW 16, Poonam Devi, wife of the deceased, who had been residing with him in the hut, who could have stated about what actually happened given the fact that it has come on record that PW14 and PW15 had been residing in different huts.
28 What makes presence of PW15 doubtful is the fact that she has not stated a word in her statement regarding 14 presence of PW14 and PW16, who are complainant and son of the deceased and the wife of the deceased respectively. 29 As observed above, even PW14 is totally silent in his statement under Section 154 Cr. P.C. regarding presence of either PW15 or PW16.
30 As per the case of the prosecution, on seeing the incident PW15 ran to the house of PW2 Vijay Kumar and disclosed to him about the incident, who in turn went to the spot on his motorcycle accompanied by PW15 and apart from witnessing the incident he rescued him from the clutches of the convict who after throwing the danda fled away from the spot on a motorcycle. However, the version so putforth by PW15 belies the entire case of the prosecution that PW14 and other persons have assembled there. If PW15 was there along with other persons, then it is highly improbable and rather there was no occasion that this witness would first go to the house of Vijay Kumar, who is residing at a distance and then would come to the spot.
31 As observed above, version of PW15 is also belied by PW2 Vijay Kumar, who has not supported the case of the 15 prosecution that it was PW15, who had disclosed to him regarding the convict assaulting the deceased. 32 PW15 further belies the case of prosecution that PW14 and PW16 were there at the spot when she states that "when Vijay came to assault, I alone was present". Even otherwise, new version as disclosed by PW15 was never the case of prosecution, yet she was not declared hostile and in the cross- examination, she admitted the same to be an improvement. The relevant portion of the statement reads as under:
"I did not tell about the talk of meat and threatening to my father-in law by the accused earlier to anyone. I had told the police that accused had demanded meat and threatened my father-in law."
33 Now, adverting to testimony of PW16 Poonam Devi, wife of the deceased, her statement instead of supporting the case of the prosecution creates a serious dent when she does not acknowledge or state nothing regarding presence of PW14 and PW-15 at the time of incident, rather she states that after the incident, her son reached home and took her husband to Police Post and from where, her husband was taken to Una 16 Hospital and thereafter to PGIMER, Chandigarh. The relevant portion of the statement reads as under:-
"Then my son reached home and took my husband to chowki and from chowki my husband was taken to Una Hospital. From Una my husband was taken to Chandigarh where succumbed to injuries."
34 Her statement is otherwise of no assistance to the case of the prosecution as she admitted that the incident took place in night and she could see only from one eye and was even unable to walk properly. Her son PW14 has also admitted in his deposition that her eye-sight was weak. 35 Even as per the case of the prosecution, PW16 had received injuries and was taken to hospital, where her medical examination was conducted. She was X-rayed and after the CT-scan, fracture was found, but thereafter surprisingly she was totally silent in her deposition about being medically examined, x-rayed or CT-scan being done.
36 In such circumstances, the prosecution has failed to prove that the x- ray and CT-scan were of PW16 given the fact that this witness did not depose regarding the same. 17 B. Recovery of the motorcycle No. HP-72A- 7301 37 The prosecution in order to prove the recovery of motorcycle, which was allegedly used by the convict to flee from the spot, examined PW1 Hari Pal and PW3 Balbir Singh and PW10 Purshotam Lal. None of them has supported the case of the prosecution. Even otherwise, the prosecution has failed to connect the motorcycle with the convict. No person had noticed registration number of the motorcycle, rather PW14 complainant himself admits that he could not notice the registration number of the motorcycle and could notice only convict leaving on motorcycle from a distance of 20-25 meters which appears to be highly improbable given the fact that admitted case of the prosecution was that it was 9.00 P.M. and the place had no electricity whatsoever and for the purpose of light, only kerosene oil lamp was there.
C. Medical Evidence: 38 In order to prove the injuries on the person of the
deceased, the prosecution examined PW4 Dr. Murli, who had conducted the post-mortem, but this witness admits that he never examined the deceased when he was alive nor was he 18 having the medico-legal history of the deceased and even he had not given any opinion qua injuries No. 4, 5 and 15 and rather opined that the same be taken from the treating doctor, but admittedly no such opinion was taken, qua which there is no explanation on record by the prosecution. 39 The other witness examined by the prosecution is PW12 Dr. Rajesh Kumar, who had initially examined the deceased and found only five injuries on his person, whereas in the post-mortem report, there were 15 injuries for which there was no explanation by the prosecution. 40 The statement of PW12 further falsifies the case of the prosecution that injured were unfit to give statement. This assumes importance given the fact that this witness has clearly stated that the history written by him on MLC regarding injuries having been sustained in a fight was in fact disclosed by the victim himself.
41 Further, statement of PW9 Dr. Gajanan Basteward, who opined the fracture on the person of PW16 Poonam Devi is itself belied by Poonam Devi herself who never claimed to have received any injury on wrist or medically examined or CT- scanned.
1942 This assumes importance because the person who took the CT-Scan was never examined by the prosecution, rather CT scan of PW-16 Poonam was seen by PW9 at Mumbai without examining her.
43 The case of the prosecution that the convict had put kerosene oil from the kerosene lamp on the deceased and set his dhoti on fire is belied even from the statement of PW4 Dr. Murli who finally opined vide Ext PW-4/F that no kerosene oil was found in the piece of skin and this is apart from the statement of PW14 who did not support the case of the prosecution and this further belies from reports of the FSL that have been placed on record.
44 Case of the prosecution all throughout has been that deceased was not in a state to give statement before the police, but the said fact is falsified by the statement of PW12 Dr. Rajesh Kumar, who had initially conducted the CT Scan of the deceased and his wife Poonam and thereafter referred them to Regional Hospital Una.
45 PW12 in his cross examination has stated that the history and opinion written by him on the MLC was based on the facts stated by the deceased/victim himself which goes to 20 indicate that deceased was in a fit state to give statement. It shall be apt to reproduce relevant portion of his statement which reads as under:
"It is correct that the history written by me on the MLC is written by me upon being disclosed by the victim examined by me."
D Forensic evidence, recovery of 'Danda' and Kerosene oil lamp 46 As per statement of PW14, who happens to be son of the deceased, danda Ext PA2 was produced by him and not by the convict. Thus, link evidence is clearly missing in the present case so as to connect 'danda' with death of the deceased.
47 Moreover, It has specifically come on record that as per the application, Ext. PW5/A that was submitted by PW5 to the Medical Officer, CHC Haroli for issuing medico legal certificates of the deceased and his wife, they had been given beatings with a rod and not with stick at the earlier occasion. 48 This assumes importance because as per the report of the FSL Ext. PW4/F, no kerosene oil was detected in the parcel Ext. P-2 i.e. cloth packet containing the clothes of the 21 deceased and likewise no kerosene oil was detected in parcel Ext. P-4 i.e. small plastic bottle stated to be containing skin of the deceased, whereas the specific case of the prosecution is that convict had poured kerosene oil on the clothes and person of the deceased and set his dhoti on fire, which fact is clearly falsified by the report of the FSL, Ext. PW4/F. 49 We need to bear in mind that graver the offence stricter shall be the proof and graver the offence, wider shall be latitude granted to the defence. However, it appears that the learned trial court has based its conviction on conjectures and surmises. However, strong the suspicion may be, it cannot take place of proof. The purpose of a criminal trial is not to convict any accused facing trial, but to do justice. 50 Resultantly, we have no hesitation to conclude that the case of the prosecution is highly doubtful and therefore, the convict is entitled to benefit of doubt. 51 In view of the aforesaid discussions, impugned judgment and order of conviction and sentence passed by the learned trial court are set aside. Consequently, the convict, in the instant case, is ordered to be released immediately, if not required in any other case.
2252 The Registry is directed to prepare release warrant of the appellant. In view of the provisions of Section 437A Cr.P.C., the appellant is directed to furnish a personal bond in the sum of Rs.25,000/- with one surety of the like amount to the satisfaction of the learned trial court, which shall be effective for a period of six months with a stipulation that in an event of an SLP being filed against this judgment or on grant of the leave, the appellant on receipt of notice thereof shall appear before the Hon'ble Supreme Court.
53 The instant appeal is allowed in the aforesaid terms. Pending application(s), if any, also stands disposed of. 54 Send down the records.
KHEM (Tarlok Singh Chauhan) Digitally signed by KHEM RAJ THAKUR DN: C=IN, O=HIGH COURT OF HIMACHAL PRADESH, OU=HIGH COURT OF HIMACHAL PRADESH Judge RAJ SHIMLA, Phone=b3bb0330a36091c417dc6aa 42212c14caec7825ba4158459325bd 600d273f58b, PostalCode=171001, S=Himachal Pradesh, THAK SERIALNUMBER=6aa9db3b3e85e6 08387fb6f0fa0bb2ddacd2e1b82f232c a3c0adea331da33983, CN=KHEM RAJ THAKUR Reason: I am approving this UR document Location: Date: 2024-07-05 16:56:47 (Sushil Kukreja) 5.7.2024 Judge (pankaj)