Himachal Pradesh High Court
Gurjant Singh Son Of Shri Nazar Singh vs State Of Himachal Pradesh on 30 March, 2015
Author: P.S.Rana
Bench: Sanjay Karol, P.S.Rana
IN THE HIGH COURT OF HIMACHAL PRADESH, AT SHIMLA
Cr. Appeal Nos. 403 of 2010
Judgment reserved on: 10th March, 2015
.
Date of Decision: March 30 , 2015
_______________________________________________________________
Gurjant Singh son of Shri Nazar Singh .....Appellant.
Vs.
State of Himachal Pradesh ...Respondent.
Coram:
Hon'ble Mr. Justice Sanjay Karol, Judge.
Hon'ble Mr.Justice P.S.Rana, Judge.
Whether approved for reporting1?. Yes.
For the Appellant: Mr. Jagdish Vats, Advocate.
For the Respondent: Mr. V.S. Chauhan, Additional Advocate
General and Mr. Vikram Thakur,
Deputy Advocate General.
P.S.Rana, J.
JUDGMENT: Appeal is filed against the judgment and sentence passed by learned Additional Sessions Judge Fast Track Court Una (H.P.) in Sessions Trial No. 15 of 2008 titled State of H.P. Vs. Gurjant Singh decided on 29.5.2010. Case was registered vide FIR No. 498 of 2002 dated 2.9.2002 at P.S. Whether reporters of the Local papers are allowed to see the judgment?. Yes.
::: Downloaded on - 15/04/2017 17:54:15 :::HCHP 2Una (H.P.) Sessions trial number was 19/04 RBT number was 37/05/04. Criminal case was against six accused namely .
Amrish Rana, Tara Chand, Bhim Singh, Sunil Kumar, Sandeep Kumar and co-accused Gurjant Singh. But during committal proceedings appellant Gurjant Singh escaped from judicial custody and later on appellant was declared as proclaimed offender. Appellant Gurjant was later on arrested and supplementary challan was prepared and submitted in Court
2. Brief facts against appellant Gurjant Singh.
BRIEF FACTS OF THE PROSECUTION CASE:
of the case as alleged by the prosecution are that deceased Ashok Kumar was working as driver in Chemical factory at Jhalera. It is alleged by prosecution that on dated 24.8.2002 deceased was seen by his brother Prem Kumar in the company of Satta @ Satvir, Pinku @ Rajesh Kumar and Neeraj @ Lambar in the Esteem car bearing registration No. DL-3CB-6939 near old hospital chowk at Una (H.P.) at 6.45 PM and thereafter deceased Ashok Kumar did not come to his home for 2/3 days nor he appeared in Court in triple murder case which was pending against him and was fixed for hearing on dated 26.8.2002. It is alleged by prosecution that on dated 26.8.2002 it was told by Naveen ::: Downloaded on - 15/04/2017 17:54:15 :::HCHP 3 Kumar to PW5 Prem Kumar that Pinku, Neeraj and Vinay Kumar took deceased Ashok Kumar to Sub jail Una (H.P.). It is .
alleged by prosecution that co-accused Amrish Rana asked Naveen Kumar and Vinay Kumar to collect money from Mehatpur and when Naveen Kumar and Vinay Kumar came back to Sub jail Una (H.P.) they found that nobody was present there and thereafter Naveen left Vinay Kumar in Sub jail Una (H.P.). It is alleged by prosecution that thereafter dead body of deceased Ashok Kumar was found in river near village Panjawar and same was identified by his brother PW5 Prem Kumar on dated 2.9.2002 in presence of father of deceased and thereafter police official took into possession the dead body and prepared inquest papers. It is alleged by prosecution that co-accused Amrish Rana and others were arrested in triple murder case at the instance of deceased and due to this enmity deceased was killed by accused persons namely Amrish Rana and others in furtherance of criminal conspiracy.
It is further alleged by prosecution that on dated 24.8.2002 when PW9 was present in his shop at about 6.30 PM an esteem car bearing registration No. DL-3CB-6939 being driven by Satnam came to his shop and Vinay Kumar, Vijay Kumar and Neeraj were sitting in said car and Vinay Kumar inquired ::: Downloaded on - 15/04/2017 17:54:15 :::HCHP 4 from PW9 about deceased Ashok Kumar and PW9 told him hat he was not knowing about deceased Ashok Kumar but in .
meantime deceased Ashok Kumar arrived there and above said persons started talking with deceased Ashok Kumar. It is alleged by prosecution that deceased Ashok Kumar was asked to come to Sub jail Una (H.P.) and thereafter deceased along with above named occupants of car came towards Sub jail Una (H.P.). It is further alleged by prosecution that at about 8.45 PM PW9 Naveen Kumar came to Sub jail Una (H.P.) on his motor cycle and found that Esteem car was lying parked outside Sub jail Una (H.P.) and Ashok Kumar, Vinay Kumar, Satnam, Vijay Kumar, Neeraj, Rajesh @ Pinku, Rajesh @ Seth and Rajinder @ Jindu were sitting in the guard room of Sub jail Una (H.P.) and were talking to each other. It is alleged by prosecution that when deceased Ashok Kumar was sitting outside the guard room then co-accused Amrish Rana and Vinay Kumar came outside the guard room and told Vinay Kumar to collect money from Ravinder @ Babbu from Mehatpur and thereafter he and Vinay Kumar went to Mehatpur on motor cycle to collect money from said Ravinder Kumar who told them that he could not arrange money and assured that money would be arranged within 2/3 days and ::: Downloaded on - 15/04/2017 17:54:15 :::HCHP 5 thereafter they came back from Mehatpur at about 8.15 PM and when they reached back to Sub jail none of persons was .
there and jail officials told that other persons have left Sub jail Una (H.P.). It is alleged by prosecution that thereafter dead body of deceased Ashok Kumar was found in river where several persons were assembled and police officials also arrived at the spot and dead body took into possession. It is alleged by prosecution that photographs of spot were also obtained and dead body was identified by Prem Kumar and Chandan Singh. It is alleged by prosecution that photocopy of duty register w.e.f. 24.8.2002 to 25.8.2002 and photocopy of meeting register w.e.f. 23.8.2002 to 26.8.2002 and photocopy of roznamacha and photocopy of register No. 16 were took into possession by police officials vide recovery memo Ext.PW4/B. It is alleged by prosecution that PW3 namely Mela Ram home guard official was told by Bheem warder of Sub jail Una (H.P.) that co-accused Amrish Rana and co-accused Gurjant Singh wanted to meet call of nature and thereafter PW3 Mela Ram home guard official posted in Sub jail Una (H.P.) informed co-accused Tara Chand who was shift warder at that time and thereafter co-accused Tara Chand opened the lock of main gate and allowed co-accused Amrish Rana and ::: Downloaded on - 15/04/2017 17:54:15 :::HCHP 6 co-accused Gurjant Singh to meet call of nature outside the jail premises because toilet inside the jail premises was .
already chocked. It is alleged by prosecution that both co-
accused Amrish Rana and co-accused Gurjant Singh were outside the jail premises and 8-10 persons came from outside to meet them and discussed something in open compound with them. It is alleged by prosecution that thereafter co-
accused Amrish Rana and co-accused Gurjant Singh sat in home guard room and thereafter co-accused Amrish Rana and co-accused Gurjant Singh took one person to the meeting room of sub jail Una (H.P.). It is alleged by prosecution that there was no light in meeting room of sub jail Una (H.P.) and thereafter after some time co-accused Amrish Rana and co-
accused Gurjant Singh came out from the meeting room of sub jail Una (H.P.) while third person remained inside meeting room of sub jail Una (H.P.). It is alleged by prosecution that thereafter co-accused Amrish Rana and co-accused Gurjant Singh told 8-10 persons to meet them next day. It is alleged by prosecution that thereafter co-accused Tara Chand took co-
accused Amrish Rana and co-accused Gurjant inside judicial lock up. It is alleged by prosecution that thereafter PW3 Mela Ram and co-accused Tara Chand went to meeting room of sub ::: Downloaded on - 15/04/2017 17:54:15 :::HCHP 7 jail Una (H.P.) and searched the meeting room of sub jail Una (H.P.) with torch. It is alleged by prosecution that PW3 Mela .
Ram home guard posted in sub jail Una (H.P.) requested co-
accused Tara Chand shift warder to hand over him the torch but co-accused Tara Chand refused to do so and thereafter PW3 Mela Ram home guard official lit a match stick and noticed that wooden box was lying in meeting room of sub jail Una (H.P.) and he partially opened wooden box and on opening wooden box he saw dead body of deceased Ashok Kumar inside the wooden box kept inside meeting room of sub jail Una (H.P.). It is alleged by prosecution that thereafter PW3 Mela Ram home guard official informed co-accused Tara Chand who told him not to disclose the incident to anyone otherwise he would be involved in criminal case. It is also alleged by prosecution that thereafter again PW3 Mela Ram on dated 2.9.2002 identified the dead body in zonal hospital Una (H.P.) and came to know that dead body was of deceased Ashok Kumar. It is alleged by prosecution that thereafter statement of PW3 Mela Ram home guard official was recorded before Judicial Magistrate under Section 164 Cr.P.C. It is alleged by prosecution that dead body was the same dead body which PW3 Mela Ram home guard saw in meeting room ::: Downloaded on - 15/04/2017 17:54:15 :::HCHP 8 of sub jail Una (H.P.) in wooden box. It is alleged by prosecution that co-accused Amrish Rana and co-accused .
Gurjant have also threatened PW3 Mela Ram home guard official that they would finish the family of PW3 Mela Ram in case he would depose against them. It is also alleged by prosecution that post mortem of deceased Ashok Kumar was conducted by PW18 Dr. Suresh Sankhayan and post mortem report is Ext.PW18/D. It is alleged by prosecution that as per post mortem report cause of death of deceased Ashok Kumar was asphyxia as a result of throttling. It is further alleged by prosecution that thereafter scooter which was used for carrying the dead body to a river was took into possession. It is alleged by prosecution that spot map was prepared and lock and wooden box also took into possession. It is alleged by prosecution that disclosure statement was also recorded and scooter No. HP-22-8137 also took into possession. It is alleged by prosecution that wooden box was also recovered from sub jail Una (H.P.) vide seizure memo. It is also alleged by prosecution that co-accused Amrish Rana and co-accused Gurjant Singh kept the dead body of deceased Ashok Kumar in a box in meeting room of Sub jail Una (H.P.) and thereafter in the night of 24.8.2002 co-accused Amrish Rana and co-
::: Downloaded on - 15/04/2017 17:54:15 :::HCHP 9accused Gurjant Singh in connivance with co-accused Tara Chand warder of Sub jail Una (H.P.) shifted the dead body to .
back side of IPH office after wrapping the same in blanket and thereafter placed the dead body in gunny bag. It is alleged by prosecution that thereafter in the night of 25.8.2002 co-
accused Amrish Rana and co-accused Gurjant in connivance with co-accused Tara Chand shift warder transported the dead body of deceased outside the meeting room of Sub jail Una (H.P.) to a river situated in Khad village on scooter No. HP-22- 8137. It is alleged by prosecution that spot map of sub jail Una (H.P.) was prepared and spot map of recovery where empty gunny bag was thrown was also prepared. It is alleged by prosecution that spot map was also prepared where spade was used for burying the dead body. It is alleged by prosecution that site plan was also prepared where dead body was buried. It is alleged by prosecution that documents were took into possession vide seizure memo Ext.PW4/B and photographs of window through which co-accused Amrish Rana and co-accused Gurjant escaped also obtained. It is alleged by prosecution that statement of Mela Ram home guard official under Section 164 Cr.P.C. was also recorded before Additional Chief Judicial Magistrate Una (H.P.). It is ::: Downloaded on - 15/04/2017 17:54:15 :::HCHP 10 alleged by prosecution that reports of FSL were also obtained.
It is alleged by prosecution that deceased Ashok Kumar and .
co-accused Amrish Rana and appellant Gurjant were accused in triple murder case which was pending before competent Court of law. After investigation of case challan was filed in competent Court of law.
3 Learned Sessions Judge Una (H.P.) framed the charge against appellant Gurjant Singh on dated 24.4.2009 The under Sections 120-B, 302 and 201 of Indian Penal Code.
Appellant did not plead guilty and claimed trial.
4.
prosecution examined following oral
witnesses in support of its case:-
Sr.No. Name of Witness
PW1 Chandan Singh
PW2 Rikhi Ram
PW3 Mela Ram
PW4 Ajay Sharma
PW5 Prem Kumar
PW6 Mohinder Singh
PW7 Rajesh Kumar
::: Downloaded on - 15/04/2017 17:54:15 :::HCHP
11
PW8 S.K. Parashar
PW9 Naveen Kumar
.
PW10 Varinderjit Singh
PW11 Parbhat Chand
PW12 Subhash Chand
PW13 Dina Nath
PW14 Sat Parkash
PW15 Avtar Singh
PW16 Suresha Nand
PW17 Dinesh Minhas
PW18 Dr. Suresh Sankhayan
PW19 Rajiv Kumar
PW20 Ashwani Kumar
PW21 Kapil Dogra
PW22 ASI Ved Parkash
PW23 HC Vipan Kumar
PW24 Kamaljit
PW25 Dy.S.P. Ajay Rana
PW26 Harnam Singh
PW27 Dharam Chand
::: Downloaded on - 15/04/2017 17:54:15 :::HCHP
12
4.1 Prosecution also produced following piece of
documentary evidence in support of its case:-
.
Sr.No. Description:
Ext.PW1/A Statement of Chandan Singh
under Section 154 Cr.P.C.
Ext.PW2/A Memo regarding room
Ext.PW2/B Memo of disposable syringe
Ext.PW3/A Statement of Mela Ram
Ext.PW4/A Memo regarding scooter
Ext.PW4/B Memo regarding duty shift
register
Ext.PW4/C Memo regarding wooden box.
Ext.PW7/A Statement under Section 27 of
Indian Evidence Act of Neeraj
Kumar
Ext.PW11/A Guard duty register.
Ext.PW11/B Entry of prisoners register
Ext.PW11/C Entry of prisoners in and out
& register.
Ext.PW11/D
Ext.PW15/A Disclosure statement of appellant Gurjant Singh Ext.PW15/B Disclosure statement of co-
accused Amrish Rana Ext.PW15/C Memo of demarcation Ext.PW18/A Application for post mortem examination Ext.PW18/B Inquest Report Ext.PW18/C Death report Ext.PW18/D Post mortem report Ext.PW19/A- Photogrpahs 1 to 9 Ext.PW22/A FIR Ext.PW23/A Nakal rapats & Ext.PW23/B Ext.PW24/A, Photographs of building Ext.PW24/B and ::: Downloaded on - 15/04/2017 17:54:15 :::HCHP 13 Ext.PW24/C Ext.P39 to Photographs of dead body Ext.P49 Ext.PW25/A Reports of FSL.
.
and
Ext.PW25/B
Ext.PW26/A Site plans
Ext.PW26/E
Ext.PW26/F Statement of witness Kapil Dogra
Ext.PW26/G Statement of witness Dina Nath
Ext PW26/H Statement of Sat Parkash
Ext.PW26/J Statement of Subhash Chand
Ext.PW27/B Site plans.
Ext.PW27/D
Ext.PW27/E Statement of Rikhi Ram
5.
Statement of accused under Section 313 Cr.P.C.
was recorded. Appellant Gurjant Singh has stated that he is innocent and false case planted against him. He has further stated that nobody came to meet him in jail on that day and no witnesses except Mela Ram had deposed against him. He has also stated that hair and syringe were planted by police in meeting room of sub jail Una (H.P.) and above said room used to be washed by sweeper daily and police of Una had enmity with him and because of enmity false case filed against him.
Accused did not lead any defence evidence. Learned trial Court convicted appellant Gurjant Singh under Section 302 IPC and under Section 120-B IPC. After hearing the convicted ::: Downloaded on - 15/04/2017 17:54:15 :::HCHP 14 person upon quantum of sentence learned trial Court sentenced appellant Gurjant Singh for life imprisonment and .
fine to the tune of ` 20,000/- (Rupees twenty thousand only) for offence punishable under Section 302 IPC read with Section 120-B IPC. Learned trial Court further directed that in default of payment of fine convicted Gurjant Singh would further undergo simple imprisonment for six months. Learned trial Court held that criminal offence under Section 201 IPC is not proved against appellant Gurjant.
6. Feeling aggrieved against the judgment and sentence passed by learned trial Court appellant Gurjant Singh filed present appeal. We have heard learned Advocate appearing on behalf of the appellant and learned Additional Advocate General appearing on behalf of the State and also perused the entire record carefully.
7. Question that arises for determination before us in this appeal is whether learned trial Court did not properly appreciate oral as well as documentary evidence placed on record and whether learned trial Court had committed miscarriage of justice by convicting the appellant.
8. ORAL EVIDENCE ADDUCED BY PROSECUTION:
8.1 PW1 Chandan Singh has stated that deceased Ashok Kumar was his son and he was driver in chemical factory at Jhalera. He has stated that his son was missing ::: Downloaded on - 15/04/2017 17:54:15 :::HCHP 15 since 24.8.2002. He has stated that his son was to appear in criminal court on dated 26.8.2002 at Una (H.P.) He has further .
stated that he made efforts to trace deceased. He has stated that thereafter he inquired from co-accused Amrish Rana and co-accused Gurjant Singh regarding whereabouts of his deceased son and they disclosed their inability. He has stated that dead body was recovered from village Khad about 12 days after deceased had gone missing. He has stated that he identified dead body of deceased which was lying by the side of river. He has stated that shirt, pant, undervest, underwear, pair of shoes, belt and pair of socks are same. He has stated that his statement was recorded under Section 154 of Code of Criminal Procedure. He has stated that his son remained in jail for 8-9 months. He has denied the suggestion that deceased was not killed by Gurjant Singh. He has denied suggestion that his son was involved in various criminal offences and was having various enemies. He has denied suggestion that some unknown person having grudge against deceased had killed deceased.
8.2. PW2 Rikhi Ram has stated that he was on temporary duty in the month of August 2002 in Sub jail Una (H.P.) as Assistant Suiperintendent sub jail Una (H.P.) and ::: Downloaded on - 15/04/2017 17:54:15 :::HCHP 16 joined duty on dated 19.8.2002 in Sub jail Una (H.P.). He has stated that meeting time of visitors in Sub jail Una (H.P.) is .
from 10 AM to 12 Noon and 3 PM to 5 PM. He has stated that on dated 24.8.2002 Mela Ram was on Santri duty and co-
accused Tara Chand was head warder in Sub jail Una (H.P.).
He has stated that on dated 24.8.2002 at about 8.30 PM co-
accused Tara Chand came to his residence and told him that 7-8 persons tried to meet co-accused Amrish Rana and co-
accused Gurjant Singh and he tried to prevent them however they talked with each other for 2/3 minutes and thereafter those 7-8 persons left the Sub jail premises Una (H.P.). He has stated that thereafter he inquired from co-accused Tara Chand whether he secured lock up of prison cell and he replied in affirmative and thereafter co-accused Tara Chand left back.
He has stated that at that time SDM Una (H.P.) was officiating Superintendent Jail and he informed him by way of telephone.
He has stated that toilet of prisoners was chocked and toilet of staff members was used by prisoners. He has stated that prisoners were taken out from the inner gate. He has stated that in the last week of July 2002 police officials came to sub jail Una (H.P.) and wanted to take Mela Ram and Tara Chand for interrogation but he did not allow because SDM Una was ::: Downloaded on - 15/04/2017 17:54:15 :::HCHP 17 not present. He has stated that on dated 8.9.2002 police officials along with Dy.S.P., SDM came to sub jail Una (H.P.) .
along with one person. He has stated that said person in custody pointed out the place which was home guard room and also pointed out one another room which was used during rainy days as visitor's room. He has stated that said room was sealed by SHO in presence of Tehsildar and key was handed over to Tehsildar Una (H.P.). He has stated that thereafter next day on dated 9.9.2002 police party came and Tehsildar also came and handed over the keys of sealed room and thereafter room was opened. He has stated that police party along with two other persons and Tehsildar went inside the room and he remained present outside room. He has stated that nothing was recovered in his presence. He has stated that Tehsildar showed him two parcels containing hairs and syringe. The witness was declared hostile by prosecution. He has denied suggestion that hairs were collected from one corner of room and from cot which was kept inside the meeting room of sub jail Una (H.P.). He has denied suggestion that hairs and syringe were separately parceled and duly sealed. He has denied suggestion that he is deposing falsely in order to save co-accused Tara Chand. He has stated that ::: Downloaded on - 15/04/2017 17:54:15 :::HCHP 18 during his tenure nobody was allowed to meet the under trials after visiting hours. He has stated that there was also Safai .
Karamcharis in Sub jail Una (H.P.) who carry routine cleaning of Sub jail and meeting room and guard room and other premises of the sub jail Una (H.P.) twice a day. He has stated that said rooms were cleaned in the morning and in the evening. He has stated that keys of outer and inner gate used to remain with sentri Mela Ram. He has stated that Mela Ram was sentri at that time. He has stated that regular record is maintained with regard to the visitors of sub jail Una (H.P.). He has stated that time and purpose of visit is also recorded. He has denied suggestion that in order to save himself from becoming co-accused in present case he prepared false documents on dated 8.9.2002 at the instance of police.
8.3 PW3 Mela Ram has stated that on dated 24.8.2002 he was posted as sentri home guard in Sub jail Una (H.P.) and his duty was w.e.f. 12 PM to 7.30 PM at the inner gate of sub jail Una (H.P.) on that day. He has stated that co-accused Gurjant Singh was under trial and was in judicial custody. He has stated that he was told by Bheem warder at 7.15 PM that co-accused Amrish Rana and co-accused Gurjant wanted to meet call of nature. He has stated that thereafter he informed ::: Downloaded on - 15/04/2017 17:54:15 :::HCHP 19 co-accused Tara Chand who was shift warder at that time. He has stated that toilet of inmates' prisoner was chocked and .
toilet outside the inner gate was used by prisoners. He has stated that co-accused Tara Chand opened the lock of gate and allowed co-accused Amrish Rana and co-accused Gurjant to meet call of nature. He has stated that when accused persons were outside the jail premises then 8-10 persons came from outside to meet them and they were discussing in the open compound outside the office of Superintendent jail.
He has stated that initially these persons along with co-
accused Amrish Rana and co-accused Gurjant were sitting in the home guard room and thereafter both accused persons Amrish Rana and Gurjant took one person inside the meeting room of of sub jail. He has stated that thereafter co-accused Amrish Rana and co-accused Gurjant came out from meeting room of sub jail Una (H.P.) after about fifteen minutes and third person remained inside the meeting room of sub jail Una (H.P.). He has stated that both Amrish Rana co-accused and co-accused Gurjant told the above 8-10 persons that they should meet them tomorrow. He has stated that thereafter co-
accused Tara Chand took inside civil prison both accused Amrish Rana and co-accused Gurjant. He has stated that ::: Downloaded on - 15/04/2017 17:54:15 :::HCHP 20 thereafter co-accused Tara Chand went to office room of sub jail Una (H.P.) and took the torch and went to meeting room of .
sub jail Una (H.P.). He has stated that co-accused Tara Chand searched the meeting room of sub jail Una (H.P.) with said torch and he became apprehensive and he demanded torch from co-accused Tara Chand. He has stated that co-accused Tara Chand did not hand over to him the torch and thereafter he lit match stick and noticed that wooden box was inside the meeting room of sub jail Una (H.P.). He has stated that thereafter lid of box was partly opened and he found dead body was inside the wooden box. He has stated that thereafter he called co-accused Tara Chand who told him not to disclose to anybody otherwise he would be involved in criminal case. He has stated that he advised co-accused Tara Chand to inform officiating Superintendent of Jail about entire incident. He has stated that next day co-accused Tara Chand again came to him and he started weeping and told that he would be involved in criminal case. He has stated that on 2.9.2002 he again identified the same dead body in Zonal Hospital Una (H.P.) and later he came to know that dead body was of Ashok Kumar. He has stated that his statement Ext.PW3/A was recorded before learned Additional Chief ::: Downloaded on - 15/04/2017 17:54:15 :::HCHP 21 Judicial Magistrate Una (H.P.). He has stated that his statement was correctly recorded by learned Additional Chief .
Judicial Magistrate Una (H.P.) and he voluntarily made statement before learned Judicial Magistrate Una (H.P.). He has stated that box Ext.P10 is the same in which dead body of deceased Ashok Kumar was found in Sub jail Una (H.P.). He has denied suggestion that deceased Ashok Kumar did not meet accused Gurjant on dated 24.8.2002. He has denied suggestion that 8-10 persons did not come in Sub jail Una (H.P.). He has denied suggestion that deceased Ashok Kumar was not detained by Gurjant accused in meeting room. He has denied suggestion that he was under the influence of local police officials. He has denied suggestion that false case was planted on the accused.
8.4 PW4 Ajay Sharma has stated that on dated 25.8.2002 at about 6 PM he had gone to Sub jail Una (H.P.) where he inquired about health of inmates. He has stated that in the meantime co-accused Amrish Rana, Gurjant and brother-in-law of Gurjant were standing in the verandah. He has stated that accused Gurjant requested him to give his scooter to brother-in-law of appellant Gurjant as he wanted to go to Gagret area to get some money. He has stated that on ::: Downloaded on - 15/04/2017 17:54:15 :::HCHP 22 their repeated requests he gave his scooter to brother-in-law of appellant Gurjant who brought back his scooter at about .
9.15 AM. He has stated that his scooter was in same condition as it was took away by brother-in-law of appellant Gurjant. He has stated that on next day he came to know that his scooter was used by accused to carry dead body. He has stated that on next day he handed over the scooter along with documents to the police and recovery memo Ext.PW4/A was prepared. He has stated that on same day police also took into possession one wooden box Ext.P10 and the record from sub jail Una (H.P.) vide recovery memos Ext.PW4/B and Ext.PW4/C which bears his signatures. He has stated that he was posted as Pharmacist in sub jail Una (H.P.) at that time. He has denied suggestion that scooter was not taken by brother-in-law of appellant Gurjant Singh. He has stated that box Ext.P10 remained in meeting room of sub jail Una (H.P.) till it was took into possession on dated 13.10.2002. He has denied suggestion that wooden box was not taken into possession in his presence.
8.5 PW5 Prem Kumar has stated that deceased Ashok Kumar was his real elder brother who was working as driver in Chemical factory at Jhalehra. He has stated that on dated ::: Downloaded on - 15/04/2017 17:54:15 :::HCHP 23 24.8.2002 he saw his brother in the company of Satto @ Satvir, Pinku @ Rajesh Kumar, Neeraj @ Lamber in Esteem car .
near old hospital chowk Una (H.P.) at 6.30 PM. He has stated that his deceased brother did not come home and he also did not appear in triple murder case which was listed for hearing on dated 26.8.2002 in which his deceased brother was co-
accused with accused Gurjant. He has stated that on dated 24.8.2002 he was told by Naveen Kumar who was co-accused in that case that Pinku @ Rajesh Kumar, Neeraj @ Lambar, Vinay Kumar took his deceased brother to Sub jail Una (H.P.).
He has stated that Naveen Kumar also told him that co-
accused Amrish Rana asked him and Vinay Kumar to collect money from Mehatpur. He has stated that when Naveen Kumar and Vinay Kumar came back to sub jail Una (H.P.) they found that nobody was present in sub jail Una (H.P.). He has stated that thereafter dead body of his deceased brother was found in river nearby Panjawar on dated 2.9.2002. He has stated that he identified the dead body of Ashok Kumar. He has stated that his father was also present at that time. He has stated that deceased disclosed him prior to his death that he was threatened by co-accused Amrish Rana and co-
accused Gurjant that they would kill him. He has denied ::: Downloaded on - 15/04/2017 17:54:15 :::HCHP 24 suggestion that his deceased brother did not disclose him any motive regarding his death.
.
8.6 PW6 Mohinder Singh has stated that on dated 29.9.2002 Mela Ram met him at Bangana during noon time and at that time he was perplexed and wanted to consult him.
He has stated that Mela Ram told him that when Mela Ram was on duty in sub jail Una (H.P.) on dated 24.8.2002 at about 7.30 PM 7-8 persons were holding a meeting in jail premises.
He has stated that Mela Ram also told him that co-accused Amrish Rana and co-accused Gurjant took one person inside the meeting room of sub jail Una (H.P.) and thereafter after 10-15 minutes two persons came out of room and one person remained inside meeting room of sub jail Una (H.P.). He has stated that Mela Ram also told him that he suspected something and he went inside the meeting room of sub jail Una (H.P.) and he saw dead body of a person inside the box in meeting room of sub jail Una (H.P.). He has stated that thereafter Mela Ram told him that fact of dead body was narrated by him to co-accused Tara Cand jail warder. He has further stated that Mela Ram told that co-accused Tara Chand advised him not to disclose this fact to any person. He has stated that thereafter Mela Ram asked his advice and he told ::: Downloaded on - 15/04/2017 17:54:15 :::HCHP 25 Mela Ram to act according to his own conscious and should disclose truth. He has stated that he did not disclose fact of .
Mela Ram conversation to anybody till 17.03.2005. He has denied suggestion that Mela Ram did not disclose any fact to him. He has denied suggestion that he is regular visitor of police station Una (H.P.).
8.7 PW7 Rajesh Kumar has stated that he was not associated in investigation of case. He has stated that nothing was recovered in his presence. He has stated that Ashwani Kumar is known to him. He has denied suggestion that on dated 8.9.2002 in his presence as well as in presence of Ashwani Kumar accused Neeraj Kumar @ Lambar disclosed during investigation to the police that he could get the room identified where co-accused Amrish Rana and co-accused Gurjant Singh involved in triple murder case met deceased Ashok Kumar along with others namely Rajinder Singh, Rajesh alias Seth, Sandeep alias Motta, Rajesh @ Pinku, Vijay Kumar, Satnam, Vinay Kumar Naveen Kumar and held a meeting. He has denied suggestion that disclosure statement of accused Neeraj was recorded. He has denied suggestion that accused persons pressurized him not to disclose the true facts in Court.
::: Downloaded on - 15/04/2017 17:54:15 :::HCHP 26He has denied suggestion that he had given false statement due to fear of accused persons.
.
8.8 PW8 S.K. Prashar Settlement Officer Consolidation has stated that in the year 2002 he was posted as Tehsildar Una (H.P.) and on dated 8.9.2002 he visited Sub jail Una (H.P.) on the order of SDM Una (H.P.). He has stated that police officials and SDM were also present. He has stated that accused Neeraj Kumar was also in custody of police. He has stated that Neeraj Kumar has pointed out the room in sub jail Una (H.P.) where some meeting took place on dated 24.8.2002 with accused. He has stated that police officials in fact wanted to seal the room where on dated 24.8.2002 he had seen Amrish Rana coming out of the room and bolting the same and room was sealed in his presence with seal impression 'BS'. He has stated that police officials handed over the keys of lock of said room after locking the same to him. He has stated that next day a team of forensic expert came from Shimla and room was opened by said team after taking the keys from him. He has stated that experts examined the meeting room from inside and syringe and hair were recovered from behind the wooden box. He has stated that police also recovered hair from other part of room near ::: Downloaded on - 15/04/2017 17:54:15 :::HCHP 27 cot. He has denied suggestion that syringe Ext.P27 and hairs Ext.P28 and Ext.P29 were not recovered from meeting room of .
Sub jail Una (H.P.).
8.9 PW9 Naveen Kumar has stated that he is running a medical store near bus stand Una (H.P.) and deceased Ashok Kumar was known to him. He has stated that he was co-
accused in triple murder case titled State vs. Amrish Rana and others and there were fourteen accused in the said triple murder case and deceased was also one of co-accused. He has stated that on dated 24.8.2002 at 6.30 PM he was at his medical shop and esteem car came at his shop which was driven by Satnam and Vinay Kumar, Vijay Kumar and Neeraj were sitting in the said car. He has stated that Vinay Kumar inquired from him about deceased Ashok Kumar and he told that he did not know about deceased Ashok Kumar. He has stated that in the meantime deceased Ashok Kumar arrived there and then they talked with deceased Ashok Kumar and thereafter deceased Ashok Kumar was asked to come to Sub jail Una (H.P.) and thereafter deceased Ashok Kumar along with Satnam, Vinay Kumar, Vijay Kumar and Neeraj went in car towards Sub jail Una (H.P.). He has stated that thereafter at about 6.45 PM he came on his motor cycle to Sub jail Una ::: Downloaded on - 15/04/2017 17:54:15 :::HCHP 28 (H.P.) and saw above stated person. He has stated that thereafter co-accused Amrish Rana and Vinay Kumar came .
outside the guard room of sub jail Una (H.P.) and co-accused Amrish Rana told Vinay to collect money from Davinder @ Babbu from Mehatpur. He has further stated that he along with Vinay Kumar went on motor cycle to Mehatpur to collect money and Devinder at Mehatpur told them that he could not arrange money and told that amount would be arranged within 2/3 days. He has stated that thereafter they came back from Mehatpur to sub jail Una (H.P.) and when they reached back in Sub jail Una (H.P.) none of above said persons were there and they were informed that above said persons have left the Sub jail complex Una (H.P.). He has stated that thereafter he came back to his shop. He has stated that on dated 26.08.2002 deceased Ashok Kumar did not appear in the Court of Additional Sessions Judge Una (H.P.). He has admitted that when Amrish Rana and Vinay Kumar came out of meeting room of sub jail Una (H.P.) at that time Gurjant Singh accused was not present. He has stated that he had not seen Gurjant Singh accused among 8-10 persons in sub jail Una (H.P.). He has admitted that he remained present at sub jail Una (H.P.) for 2-3 minutes. He has denied suggestion that ::: Downloaded on - 15/04/2017 17:54:15 :::HCHP 29 persons mentioned above did not come to his shop. He has denied suggestion that deceased Ashok Kumar did not meet .
him at his shop.
8.10 PW10 Varinderjit Singh has stated that about 5-6 years back during rainy season a dead body was lying in village river and several persons have assembled there. He has stated that police also arrived at the spot and dead body was took into possession by the police officials. He has further stated that when he saw the dead body he informed the police. He has stated that dead body was lying on the side of road and body came to the side of road by flowing from the water in river.
8.11 PW11 Parbhat Chand Deputy Superintendent jail Nahan (H.P.) has stated that he is posted as Assistant Superintendent Sub jail Una (H.P.) in 2002 and brought the summoned record. He has stated that during investigation he produced photocopy of duty register from dated 24.8.2002 to 25.8.2002 and photocopy of meeting register w.e.f. 23.8.2002 to 26.8.2002, photocopy of roznamcha dated 24.8.2002 and 25.8.2002 and photocopy of register No. 16 regarding entries of persons who came in Sub jail Una (H.P.) and regarding entries of persons who came outside Sub jail premises Una ::: Downloaded on - 15/04/2017 17:54:15 :::HCHP 30 (H.P.) and same were took into possession vide recovery memo Ext.PW4/B. He has stated that photocopies of above .
said record are Ext.PW11/A to Ext.PW11/D. He has stated that on dated 24.8.2002 Rikhi Ram was officiating in his place as Assistant Superintendent Jail. He has stated that distance between meeting room and lock up gate is 10 metres. He has stated that as per jail manual keys of lock up used to remain with Assistant Superintendent Jail. He has stated that visiting time was between 2 PM to 4.30 PM. He has stated that no visitor was allowed to meet on Sunday. He has stated that during lock time number of inmates are counted and thereafter prison cell used to be locked.
8.12 PW12 Subhash Chand warder has stated that during the year 2002 he was posted in Sub jail Una (H.P.) as warder. He has stated that he used to sleep in the barracks of Sub jail Una (H.P.) after duty hours. He has stated that he was having one wooden box Ext.P10 which he used to keep in meeting room of Sub jail Una (H.P.) and there used to be a cot in the said meeting room. He has stated that meeting room was meant for meeting of visitors with inmates and officials of jail also used the said room for sleeping purpose. He has stated that there is also kitchen room in Sub jail Una and said ::: Downloaded on - 15/04/2017 17:54:16 :::HCHP 31 room was not being used exclusively by co-accused Amrish Rana and co-accused Gurjant Singh. The witness was declared .
hostile. He has stated that he had not kept any blanket and pair of shoes in box Ext.P10. He has stated that he was on leave w.e.f. 24.8.2002 to 27.8.2002. He has denied suggestion that he had kept blanket and shoes in box Ext.P10 when he went on leave. He has stated that lock of wooden box could be locked and opened by pushing the lid. He has denied suggestion that blanket was missing from box. He has stated that in fact no blanket was kept by him in box. He has denied suggestion that wooden box was washed and was wet and lock was uprooted. He has denied suggestion that when he inquired about wetting of box it was told by co-accused Amrish Rana and co-accused Gurjant that vegetables had fallen in box and they washed the same. He has denied suggestion that co-accused Amrish Rana and co-accused Gurjant told that they had handed over the blanket to somebody and they would give the new blanket to him. He has denied suggestion that on inquiry it came to his knowledge that co-accused Amrish Rana and co-accused Gurjant had used the said box for keeping the dead body of deceased Ashok Kumar. He has denied suggestion that iron ::: Downloaded on - 15/04/2017 17:54:16 :::HCHP 32 rod of window of bathroom facing the building of District Consumer Court was broken and same was later on welded.
.
He has stated that welding work was done on main gate of Sub jail Una (H.P.). He has denied suggestion that he is deposing falsely in order to save the jail officials who are accused in the case. He has stated that Safai Karamchari used to clean the bathroom and meeting room daily in Sub jail Una (H.P.) 8.13 PW13 Dina Nath welder has stated that on dated 9.9.2002 he was called by officials of jail for carrying out welding work in Sub jail Una (H.P.) and he carried out the welding work in main gate. He has stated that he did not carry any welding work to iron rod in the bathroom of sub jail Una (H.P.). He has denied suggestion that he carried out welding work of iron rod which was cut from the window of bathroom facing towards District Consumer Court. He has also denied suggestion that he had repaired another iron rod of window by hammer as same was bend. He has denied suggestion that accused had threatened him.
8.14 PW14 Sat Parkash has stated that in the year 2002 nobody demanded from his son Jagmohan the kassi (Instrument for removing sand and mud) on the pretext that ::: Downloaded on - 15/04/2017 17:54:16 :::HCHP 33 their tractor was stuck in the mud and same was required for the purpose of removal of sand and mud. He has denied .
suggestion that about seven years back during rainy season two persons came to his house on the scooter and demanded kassi from his son Jagmohan so as to remove mud and sand from river where their tractor was already stuck in the mud.
He has stated that his son Jagmohan is mentally ill since his childhood and he is not in a position to understand anything.
8.15
r to
He has denied suggestion that he had deposed falsely at the instance of accused.
PW15 Avtar Singh has stated that he was joined by police in investigation of case and was took by brother-in-
law of deceased Ashok Kumar to police station where he signed some papers at the instance of police officials. He has stated that accused Gurjant and Amrish Rana have not made any disclosure statement in his presence. He has stated that Gurjant and Amrish Rana did not led police officials to any place in his presence. He has denied suggestion that accused person had given disclosure statement in his presence that dead body of deceased Ashok Kumar was wrapped in blanket and thereafter kept in wooden box in sub jail Una (H.P.). He has denied suggestion that accused person had also given ::: Downloaded on - 15/04/2017 17:54:16 :::HCHP 34 disclosure statement that accused Gurjant and Amrish Rana kept the dead body behind the IPH building between the .
coolers in the night period. He has denied suggestion that accused person had given the disclosure statement that on dated 25.8.2002 dead body was carried on the scooter bearing No. HP-22-8137. He has denied suggestion that accused person had given disclsoure statement that scooter was driven by co-accused Amrish Rana and appellant Gurjant was holding the dead body as pillion rider in gunny bag. He has denied suggestion that accused had also given disclosure statement that kassi (Instrument for removing sand and mud) was brought from house of Sat Parkash of village Panjawar and thereafter dead body of Ashok Kumar was dumped in the sand. He has denied suggestion that accused person had also given disclosure statement that blanket, gunny bag along with kassi were brought back by both accused and kassi was thrown in the bridge of village Khad. He has denied suggestion that accused had also given disclosure statement that blanket and gunny bag were thrown from bridge of village Khad in Swan river. He has denied suggestion that accused person had given disclosure statement that Gurjant and Amrish Rana were escaped through window of bathroom of Sub jail Una ::: Downloaded on - 15/04/2017 17:54:16 :::HCHP 35 (H.P.) with connivance of co-accused Tara Chand and again came back through same window. He has denied suggestion .
that co-accused Amrish Rana and co-accused Gurjant led the police officials to Sub jail Una (H.P.) and identified the room where deceased Ashok Kumar was murdered and where his dead body was kept. He has denied suggestion that accused persons have also identified the window of bathroom through which both accused persons escaped along with dead body.
He has denied suggestion that accused persons have pointed out the place behind IPH building where dead body of Ashok Kumar was initially kept in cooler. He has denied suggestion that accused persons have also pointed the place where they have thrown the gunny bag. He has denied suggestion that accused persons have also located the place where blanket was thrown in river and he has also denied suggestion that accused also located the place where kassi was thrown near Pandoga bridge. He has denied suggestion that accused persons also located the place where dead body of deceased was dumped in sand. He has denied suggestion that accused persons have also located the house from where kassi was brought by accused persons. He has denied suggestion that all memos and disclosure statement written in his presence.
::: Downloaded on - 15/04/2017 17:54:16 :::HCHP 36He has denied suggestion that he had deposed falsely at the instance of accused so as to save them from legal .
punishment.
8.16 PW16 Suresh Nand has stated that he was joined by police in the investigation of the case in the year 2002 and during investigation Ajay Sharma produced scooter bearing No.HP-22-8137 along with documents and key on dated 13.10.2002. He has stated that scooter and key were took into possession vide memo Ext.PW4/A which bears his signatures.
He has stated that during investigation police also took into possession one wooden box from Sub jail Una (H.P.) and he has further stated that hook of wooden box was not fixed with the box and lock was attached. He has stated that said box was took into possession by police vide memo Ext.PW4/C which bears his signatures. He has stated that lock Ext.P9 and box Ext.P10 are the same. He has stated that recovery memos were prepared by police in police station. He has denied suggestion that scooter along with documents and key were not handed over to police officials in his presence. He has denied suggestion that wooden box was not taken in his presence.
::: Downloaded on - 15/04/2017 17:54:16 :::HCHP 378.17 PW17 Dinesh Minhas has stated that he is running a shop of photographer at Ispur for the last 18 years and he .
was joined in investigation of case. He has stated that he took the photographs of dead body. He has stated that photographs are Ext.P39 to Ext.P49 and negatives are Ext.P50 (Eleven in number). He has admitted that initially dead body was lying straight on the ground.
8.18 PW18 Dr. Suresh Sankhayan has stated that he is working as Professor and Head Department of Forensic Medicines in R.P. Government Medical College Kangra at Tanda since November 1997. He has stated that police moved an application Ext.PW18/A for conducting post mortem of deceased Ashok Kumar aged 30 years resident of Annila and before conducting the post mortem inquest papers Ext.PW18/B and Ext.PW18/C were handed over to him by police which bear his signatures. He has stated that during post mortem examination on the dead body of deceased Ashok Kumar he along with Dr. Umesh Gautam observed that on external appearance dead body was of a male aged 30 years measuring 63½" in advance stage of purification with peeling off of superficial layers of skin. He has stated that subcutaneous fact of above body showed early changes of ::: Downloaded on - 15/04/2017 17:54:16 :::HCHP 38 adepocere formation and whole body showed bleaching of skin with corrugation of skin of soles and palms. He has .
further stated that rigor mortis were passed off completely and hypostasis post mortem stains could not be made out. He has stated that external injuries which could be made out on body were contusions along shoulder blades, vertebral column on the back, medial side of thighs and legs and also along the outer and inner surface of both arms. He has stated that scalp skull and vertebral showed no injury. He has stated that left side of chest muscles was slightly contused and all ribs were intact. He has further stated that pleurae was normal and there were fractures of left great cornu of hyoid bone and right side of cricoid cartilage and inferior corno of thyroid cartilage also showed inward compression fracture. He has further stated that on examination of lungs both legs were found pulpy and heart was also found pulpy but vessels were found normal. He has also stated that on examination of abdomen superficial layer of skin was found peeled off and peritoneum was found intact and no bleeding was found in peritoneum cavity. He has stated that injury around mouth and nostril could not be made out due to peeling of skin and subcutaneous tissues showed adepocere. He has stated that ::: Downloaded on - 15/04/2017 17:54:16 :::HCHP 39 stomach and its contents were pulpy and empty and intestines were full of gases and slight in large intestine and .
livers, spleen and kidney were found pulpy. He has stated that bladder was empty and external genitals showed signs of adepocere. He has stated that there was no fracture of any bone in the body except for the laryngeal bones and there were sand particles in the trachea, bronchi and esophagus and stomach and lungs were found pulpy and collapsed. He has stated that death took place due to asphyxia as a result of throttling. He has stated that probable time between injury and death was few minutes and between death and post mortem was 7 to 14 days. He has stated that after post mortem he handed over the reconstructed dead body, post mortem report, packet of clothes and viscera for chemical analysis and packet containing hairs of deceased. He has stated that he issued post mortem report Ext.PW18/D which bears his signatures. He has stated that it was possible to put a body of deceased in box immediately after the death. He has denied suggestion that he has given wrong opinion against medical jurisprudence.
8.19 PW19 Rajiv has stated that he is performing the work of photography for the last eight years at Una (H.P.). He ::: Downloaded on - 15/04/2017 17:54:16 :::HCHP 40 has stated that he was joined by police in the investigation of case in Sub jail Una (H.P.). He has stated that he took the .
photographs of room of Sub jail Una (H.P.) which are Ext.PW19/A-1 to Ext.PW19/A-9. He has stated that he took the photographs of hairs and disposable syringe and box as per instance of police officials.
8.20. PW20 Ashwani Kumar has stated that he does not remember the date and he did not know anything about the present case.Witness was declared hostile by prosecution. He has denied suggestion that he and Rajesh Kumar remained associated with police during investigation. He has denied suggestion that Neeraj Kumar took the police party along with witnesses to the spot and identified the meeting room in jail premises. He has denied suggestion that he joined the investigation on dated 9.9.2002 along with Rikhi Ram, S.K. Parashar, Tek Chand and FSL expert Dr. B.S. Jaswal along with his team. He has denied suggestion that they have examined the seal of lock which was found intact. He has stated that he signed the blank papers on the request of police in good faith.
He has denied suggestion that he was connived with accused and that is why he was deposing falsely. He has stated that seizure memos Ext.PW7/A, Ext.PW2/A and Ext.PW2/B were not ::: Downloaded on - 15/04/2017 17:54:16 :::HCHP 41 read over and explained to him and he signed the same in good faith on blank papers.
.
8.21 PW21 Kapil Dogra has stated that he is posted as warder in Sub jail Una (H.P.). He has stated that on dated 9.9.2002 he was asked by Assistant Superintendent sub jail Una (H.P.) Rikhi Ram to bring some welder in Sub jail Una (H.P.) for welding the gate. He has stated that thereafter he brought a local welder and said welder proceeded towards the gate of Sub jail Una (H.P.) for conducting welding work. He has stated that thereafter he resumed his duty in office and did not notice as to whether the said welder performed the welding work or not. He has stated that he was not asked by Rikhi Ram officiating Superintendent to bring welder for the purpose of welding of iron strip of window of bathroom. The witness was declared hostile. He has denied suggestion that Rikhi Ram officiating Superintendent told him that iron rod of window of bathroom was cut and same was to be welded. He has denied suggestion that welding of iron strip of window of bathroom was conducted in his presence. He has stated that there is a window in bathroom facing the building of District Consumer Court Una (H.P.). He has stated that he has not noticed that iron rod of window of bathroom was broken in ::: Downloaded on - 15/04/2017 17:54:16 :::HCHP 42 such a manner that person could escape through the same.
He has admitted that there was a sweeper in sub jail Una .
(H.P.). He has admitted that sweeper used to clean jail premises regularly. He has stated that sweeper w.e.f.
24.8.2002 to 9.9.2002 had regularly cleaned jail premises including meeting room of sub jail Una (H.P.). He has admitted that Assistant Superintendent Jail Rikhi Ram told him only about repair of gate only. He has denied suggestion that he is deposing falsely in order to save the accused.
8.22 PW22 Ved Parkash has stated that he was posted as MHC P.S. Una (H.P.) during the year 2001 to 2004. He has stated that on dated 3.9.2002 he recorded FIR Ext.PW2/A on the basis of ruka Ext.PW1/A and also made endorsement Ext.PW22/B on the ruka and handed over the file to C. Surjit Singh to hand over the same to SHO at the spot. He has stated that on dated 2.9.2002 C. Tilak Raj deposited viscera along with belonging of deceased sealed with seal of mortuary of Zonal Hospital Una (H.P.) and he deposited the same in malkhana on the same day. He has stated that on dated 9.9.2002 Dharam Chand SHO deposited with him three parcels duly sealed with seal BS and lock and same were deposited in malkhana by him. He has stated that on dated ::: Downloaded on - 15/04/2017 17:54:16 :::HCHP 43 16.9.2002 five parcels were sent through C. Lal Chand to FSL Junga vide RC No. 223/02 along with documents for chemical .
examination. He has further stated that constable handed over the receipt to him after return and case property remained intact in his custody. He has stated that on dated 13.10.2002 Harnam Singh SHO deposited scooter and wooden box along with lock and same were kept in malkhana and nobody tampered so long they remained in malkhana. He has stated that lock is Ext.P9, box is Ext.P10 and another lock and keys are Ext.P24 to Ext.P26. He has denied suggestion that FIR was recorded after due deliberation and consultation. He has denied suggestion that FIR is anti-time.
8.23 PW23 HC Vipan kumar has stated that he has brought summoned record and further stated that during the year 2002 he was posted as Munshi in P.S. Una (H.P.) and he recorded rapat No. 25 dated 26.8.2002 copy of which is Ext.PW23/A and same is correct as per original record. He has denied suggestion that he has deposed falsely.
8.24 PW24 Kamaljit has stated that he is running a shop of photographs for the last 25 years and on dated 18.10.2002 he remained associated with police. He has stated that he took photographs of ventilator in sub jail Una (H.P.) ::: Downloaded on - 15/04/2017 17:54:16 :::HCHP 44 and he had seen the original photographs in summoned file Ext.P11 to Ext.P13 and has also seen negatives which are .
Ext.PW24/A to Ext.PW24/C. 8.25 PW25 Dy.S.P. Ajay Rana has stated that in the year 2006 he remained posted as SHO P.S. Sadar Una (H.P.) and on completion of investigation he prepared challan on dated 27.11.2006 which bears his signatures. He has stated that FSL reports are Ext.PW25/A and Ext.PW25/B. He has stated that he obtained the copies from copying agency.
8.26 PW26 Harnam Singh has stated that in the year 2002 he was posted as SHO in P.S. Una (H.P.) and on dated 25.9.2002 he took investigation from Ruldu Ram. He has stated that he recorded statement of Mohinder Singh. He has stated that he recorded supplementary statement of Mela Ram on dated 1.10.2002. He has stated that on dated 8.9.2002 he arrested co-accused Tara Chand on the ground that he had conspired with other co-accused in commission of offence. He has stated that he also interrogated co-accused Amrish Rana and co-accused Gurjant w.e.f. 1.10.2002 to 12.10.2002. He has stated that on dated 12.10.2002 co-
accused Amrish Rana had made a disclosure statement Ext.PW15/B. He has stated that scooter bearing No. HP-22- ::: Downloaded on - 15/04/2017 17:54:16 :::HCHP 45 8137 also took into possession vide seizure memo Ext.PW4/A. He has stated that wooden box Ext.P10 and lock Ext.P9 were .
also took into possession vide seizure memo Ext.PW4/C. He has stated that it had come during investigation that dead body of deceased Ashok Kumar was kept by co-accused Amrish Rana and co-accused Gurjant in wooden box Ext.P10 and thereafter during night on dated 24.8.2002 with connivance of co-accused Tara Chand who was warder of Sub jail Una (H.P.), co-accused to Amrish Rana and co-accused Gurjant shifted the dead body to back side of IPH office after wrapping the same in blanket and placed the same in gunny bag. He has stated that thereafter on dated 25.8.2002 in the night co-accused Amrish Rana and co-accused Gurjant in connivance with co-accused Tara Chand came out of jail through window and transported the dead body to a river in village Khad on a scooter which was driven by co-accused Amrish Rana. He has stated that appellant Gurjant sat upon the scooter as pillion rider and caught the dead body of deceased and thereafter buried dead body in river. He has stated that he prepared spot map Ext.PW26/A of Sub jail Una (H.P.) which is in his hand and marginal notes are prepared.
He has stated that he prepared spot map Ext.PW26/B of place ::: Downloaded on - 15/04/2017 17:54:16 :::HCHP 46 where empty gunny bag was thrown. He has stated that he also prepared spot map Ext.PW26/C where blanket was stated .
to have been thrown. He has stated that Ext.PW26/D is the spot map where spade was thrown which was used for burying the dead body. He has stated that he also prepared site plan Ext.PW26/E where dead body was buried. He has also stated that he took into possession documents Ext.PW11/A to Ext.PW11/D vide seizure memo Ext.PW4/B in presence of ASI Vishwas and Ajay Sharma. He has also stated that he also obtained photographs of window, bathroom Ext.PW24/A to Ext.PW24/C and also recorded statements of welder Dina Nath and photographer Kamaljit. He has stated that statement of Mela Ram under Section 164 Cr.P.C. was also recorded before Additional Chief Judicial Magistrate Una (H.P.). He has stated that he also recorded statements of other witnesses. He has stated that during investigation it came that offence in question was committed by co-accused Amrish Rana and co-
accused Gurjant in connivance with co-accused Tara Chand, who was warder in sub jail Una (H.P.) He has stated that other co-accused remained sleepping in sub jail Una (H.P.) when co-
accused Amrish Rana and co-accused Gurjant came out of jail through window of bathroom and they were negligent. He has ::: Downloaded on - 15/04/2017 17:54:16 :::HCHP 47 stated that as per investigation motive behind the murder of deceased Ashok Kumar was that Ashok Kumar was co-accused .
in triple murder case but he was on bail and other co-accused namely Amrish Rana and co-accused Gurjant wanted him to be absent from hearings in triple murder case so that trial of triple murder case could be delayed. He has stated that co-
accused Amrish Rana and co-accused Gurjant also wanted that deceased Ashok should arrange finance but deceased Ashok Kumar did not agree for proposal. He has denied suggestion that local police of Una was annoyed with co-
accused Amrish Rana and Gurjant and due to annoyance false criminal case was filed. He has denied suggestion that he recorded statements of witnesses contrary to their narration.
He has admitted that initially nine persons were arrested in present case by earlier Investigating Officer on the basis of suspicion.
8.27 PW27 Inspector Dharam Chand DSP has stated that he remained posted as SHO in P.S. Una (H.P.) during the year 2001-2002 and further stated that on dated 26.8.2002 one Chandan Singh reported the matter to police disclosing therein that his son Ashok Kumar was missing since dated 24.8.2002 and same was incorporated into daily diary report ::: Downloaded on - 15/04/2017 17:54:16 :::HCHP 48 No. 25 dated 26.8.2002 which is Ext.PW23/A. He has further stated that thereafter on dated 2.9.2002 a telephonic .
message was received from P.P. Pandoga in which it was informed that Ward Panch Varinder Jeet Singh G.P. Khad had informed that a male dead body was lying on bank of Swan river at village Khad near the house of Bajigar and this information was recorded into daily diary report No. 29 dated 2.9.2002 copy of which is Ext.PW23/B. He has stated that thereafter he along with ASI Vishwas Kumar and other police officials went to the spot with direction to MHC to send the photographer to the spot. He has stated that when he reached at the spot police officials from P.P. Pandoga and local people have already reached at the spot. He has stated that he found one male dead body lying on bank of Swan river out of the water and he called the person who reported the matter for missing of his son to identify the body of his son namely Ashok Kumar who was missing. He has stated that he recorded statement of Chandan Singh under Section 154 Cr.P.C.
Ext.PW1/A and sent the same through ruka for registration of FIR over which FIR Ext.PW22/A was registered with endorsement Ext.PW22/B. He has further stated that he took the photographs of spot including dead body Ext.P39 to ::: Downloaded on - 15/04/2017 17:54:16 :::HCHP 49 Ext.P49 and negatives thereof are Ext.P50 and thereafter he prepared inquest reports Ext.PW18/B and Ext.PW18/C and .
thereafter sent the dead body for post mortem vide application Ext.PW18/A and prepared spot map Ext.PW27/B of the spot including marginal notes thereof. He has stated that he also recorded the statement of witness Varinder Jeet Singh under Section 161 Cr.P.C. and then he came back from the spot along with Prem Kumar and Naveen and police officials.
He has stated that he sent police officials to call Dr. Suresh Sankhayana from Medical College Tanda being forensic expert. He has stated that on dated 3.9.2002 he arrested Ashok, Rajinder, Sandeep, Neeraj, Dinesh @ Pinku and Dinesh @ Seth and also sent ASI Vishwas to arrest Satnam and Vijay.
He has stated that Dr. Suresh Sankhayan and Dr. Umesh Gautam conducted the post mortem vide post mortem report Ext.PW18/D and handed over three parcels containing clothes of deceased, hair of deceased and viscera and sealed them and thereafter handed over the dead body to father of deceased. He has stated that he deposited sealed parcels in malkhana with MHC P.S. Sadar through C. Jatinder Singh. He has stated that on dated 5.9.2002 he associated the witnesses Mela Ram and Tara Chand and on dated 8.9.2002 he recorded ::: Downloaded on - 15/04/2017 17:54:16 :::HCHP 50 statement of Raj Kumar. He has stated that during custody he recorded disclosure statement of accused Neeraj Kumar which .
is Ext.PW7/A. He has stated that he also prepared spot map and also prepared marginal notes. He has stated that he also obtained the keys from S.K. Parashar and opened the sealed room and forensic expert inspected the spot in presence of witnesses. He has stated that one wooden box was found in room and one empty disposable syringe was also found near wooden box. He has stated that some hairs were also lying.
He has stated that disposable syringe was also took into possession and thereafter sealed in packet and hairs were also placed in sealed box. He has stated that he also prepared spot map Ext.PW27/D including marginal notes. He has stated that lock, pair of key, syringe, hairs took into possession vide memo. He has also stated that he recorded statements of witnesses of seizure memos and also recorded supplementary statement. He has stated that he deposited the articles with MHC P.S. Sadar and on dated 10.9.2002 he accompanied the forensic expert team to the spot at Khad from where dead body was recovered. He has stated that thereafter he was transferred and handed over the case file to ASI Vishwas. He has admitted that deceased Ashok Kumar was one of co-
::: Downloaded on - 15/04/2017 17:54:16 :::HCHP 51accused in triple murder case and deceased Ashok had also remained in judicial custody in Sub jail Una (H.P.) in .
connection with triple murder case. He has stated that witness Naveen Kumar was also one of co-accused in triple murder case and he also remained in judicial custody in triple murder case. He has denied suggestion that local police officials were annoyed with co-accused Amrish Rana and co-accused Gurjant Singh and they have planted a false case against them. He has denied suggestion that hairs and syringe were planted to strengthen the prosecution case. He has admitted that gate of jail remained locked. He has admitted that whenever gate is opened by guards entries are recorded in jail register. He has stated that he did not take any record relating to chocking of prisons' toilet on dated 24.8.2002. He has admitted that eight persons were arrested on 3.9.2002 and their police remand was also obtained and they were sent to judicial custody in present case. He has denied suggestion that w.e.f. 5.9.2002 to 18.9.2002 Mela Ram remained in his illegal custody and after torturing him he was cited as prosecution witness.
::: Downloaded on - 15/04/2017 17:54:16 :::HCHP 52Reasons for findings in Criminal Appeal No. 403 of 2010 titled Gurjant Singh vs. State of H.P.
9. Learned Advocate appearing on behalf of the .
appellant submitted that present case is based upon circumstantial evidence and based upon last seen theory and chain of circumstances is not complete in present case is accepted for the reasons hereinafter mentioned. It is the case of prosecution that on dated 24.8.2002 deceased namely Ashok Kumar along with 8-10 persons came to meet co-
accused Amrish Rana and co-accused Gurjant in Sub jail Una (H.P.) and thereafter co-accused Amrish Rana and co-accused Gurjant took deceased in meeting room of Sub jail Una (H.P.) and killed him by way of throttling. It is further case of prosecution that thereafter co-accused Amrish Rana and co-
accused Gurjant kept the dead body of deceased Ashok Kumar in a wooden box kept in the meeting room of sub jail Una (H.P.) and thereafter during night of 24.8.2002 wrapped the dead body of deceased Ashok Kumar in blanket and placed it in gunny bag and thereafter in the night took the dead body in office of IPH from sub jail Una (H.P.) and kept the dead body behind two coolers. It is the case of prosecution that thereafter co-accused Amrish Rana and co-accused Gurjant on dated 25.8.2002 cut the iron rod of window of ::: Downloaded on - 15/04/2017 17:54:16 :::HCHP 53 bathroom of jail and came out of sub jail Una (H.P.) and took the dead body upon scooter having registration No. HP-22- .
8137 40 K.m. away and buried the dead body of deceased in river. It is case of prosecution that co-accused Amrish Rana was driving scooter and co-accused Gurjant was pillion rider of scooter and was carrying dead body in his hands. It is further case of prosecution that thereafter co-accused Amrish Rana and co-accused Gurjant again came in jail prison cell through window of bathroom of Sub jail Una (H.P.) in connivance with co-accused Tara Chand. It is the case of prosecution that murder of deceased was committed inside the meeting room of Sub jail Una (H.P.) when co-accused Amrish Rana and co-
accused Gurjant were facing trial of triple murder case and when co-accused Amrish Rana and co-accused Gurjant were in judicial custody in Sub jail Una (H.P.).
10. We have carefully perused the testimony of PW13 Dina Nath welder. PW13 Dina Nath has specifically stated that he did not perform the welding work of strip of iron of window of bathroom which was already cut. It is held that testimony of PW13 Dina Nath is hostile to prosecution because by way of testimony of PW13 Dina Nath chain of circumstantial evidence relied by prosecution that co-accused Amrish Rana and co-
::: Downloaded on - 15/04/2017 17:54:16 :::HCHP 54accused Gurjant have cut the strip of iron window situated in bathroom of sub jail Una (H.P.) on dated 25.8.2002 and .
thereafter came out of sub jail Una (H.P.) to carry dead body to a river on scooter is broken.
11. We have also carefully perused the testimony of PW21 Kapil Dogra warder of sub jail Una (H.P.) who has specifically stated that he does not know that welding work of window of bathroom of sub jail Una (H.P.) was conducted. He has stated that he was not asked by Rikhi Ram Assistant Superintendent sub jail Una (H.P.) to bring welder for the purpose of welding of iron strip of window of bathroom of sub jail Una (H.P.). He has stated that he did not notice that iron rod of window of bathroom of sub jail Una (H.P.) was broken in such a manner that person could easily come and go through window. It is held that testimony of PW21 Kapil Dogra has also broken the chain of circumstantial evidence relied by prosecution.
12. We have carefully perused the statement of PW14 Sat Parkash who has specifically stated that accused persons did not demand any kassi from him or his son on the pretext that their tractor had stuck in mud. He has denied suggestion that two persons came during rainy season and demanded ::: Downloaded on - 15/04/2017 17:54:16 :::HCHP 55 kassi from his son on the pretext that their tractor was stuck in mud. Hence it is held that testimony of PW14 Sat Parkash is .
also hostile to prosecution because testimony of PW14 has broken the chain of circumstantial evidence as relied by prosecution.
13. We have carefully perused the testimony of PW12 Subhash Chand warder sub jail Una (H.P.) who has specifically stated in positive cogent and reliable manner that he had not kept the blanket in wooden box which was kept in meeting room of sub jail Una (H.P.). He has also stated that lock of wooden box could be locked and opened easily by pressing the lid. He has denied suggestion that blanket was missing from box and he has also denied suggestion that he had kept the blanket in box in meeting room. He has denied suggestion that wooden box kept in meeting room was washed and wet.
He has denied suggestion that lock was uprooted. He has denied suggestion that accused person told him that he would supply him the new blanket. He has denied suggestion that accused person had kept the dead body of deceased in box which was kept in meeting room in Sub jail Una (H.P.). He has denied suggestion that iron rod of window was broken. He has denied suggestion that welding work was done in window of ::: Downloaded on - 15/04/2017 17:54:16 :::HCHP 56 bathroom of Sub jail Una (H.P.). Hence it is held that testimony of PW12 Subhash Chand warder is also hostile to prosecution .
and it is further held that testimony of PW12 has also broken the chain of circumstantial evidence relied by prosecution.
14. We have carefully perused testimony of PW15 Avtar Singh who is a witness of disclosure statement. He has stated that accused did not give any disclosure statement in his presence that dead body was wrapped in blanket and thereafter kept in wooden box in Sub jail Una (H.P.) and thereafter dead body was placed in gunny bag. He has stated that accused person had not given any disclosure statement that dead body was kept behind IPH building between the coolers. He has stated that accused person had not given disclosure statement that accused persons carried out the dead body on scooter No. HP-22-8137 to a river and buried there. We are of the opinion that testimony of Avtar Singh PW15 is hostile to the prosecution and we are of the opinion that testimony of PW15 Avtar has also broken the chain of circumstantial evidence relied by prosecution.
15. We have also carefully perused the testimony of PW3 Mela Ram who was a star witness of prosecution and as per prosecution story PW3 Mela Ram has personally seen co-
::: Downloaded on - 15/04/2017 17:54:16 :::HCHP 57accused Amrish Rana and co-accused Gurjant taking the deceased Ashok in meeting room of sub jail Una (H.P.) and .
thereafter only co-accused Amrish Rana and co-accused Gurjant came out and dead body of deceased was found in wooden box which was kept in meeting room of sub jail Una (H.P.). Statement of PW3 Mela Ram was recorded for the first time on dated 5.9.2002 and thereafter supplementary statement of PW3 Mela Ram was recorded on dated 1.10.2002 and thereafter statement of PW3 Mela Ram was recorded before Judicial Magistrate under Section 164 Cr.P.C. on dated 21.10.2002. PW3 Mela Ram was Santri home guard posted in Sub jail Una (H.P.) on dated 24.8.2002 at the time of alleged incident and his duty was w.e.f. 12 PM to 7.30 PM and case of prosecution is that PW3 Mela Ram saw that at about 7/7.15 PM in the evening co-accused Amrish Rana and co-accused Gurjant took the deceased Ashok Kumar in meeting room of sub jail Una (H.P.) and thereafter co-accused Amrish Rana and co-accused Gurjant came out of meeting room of sub jail Una (H.P.) and deceased Ashok Kumar did not come out of meeting room of sub jail Una (H.P.) and his dead body was found in wooden box which was kept in meeting room of Sub jail Una (H.P.). There is material improvement in statement of ::: Downloaded on - 15/04/2017 17:54:16 :::HCHP 58 PW3 Mela Ram recorded on dated 5.9.2002, 1.10.2002 and then 21.10.2002. When statement of Mela Ram was recorded .
on dated 5.9.2002 by Investigating Officer Mela Ram has simply stated that he had a suspicion that deceased was murdered by co-accused Amrish Rana and co-accused Gurjant on dated 24.8.2002 in the meeting room of Sub jail Una (H.P.) between 7 to 7.15 PM. When statement of PW3 Mela Ram was recorded on dated 5.9.2002 PW3 Mela Ram did not inform body kept in Investigating Officer that on dated 24.8.2002 after 7.15 PM he personally entered into the meeting room and saw the dead wooden box with match stick. When supplementary statement of PW3 Mela Ram was recorded on dated 1.10.2002 PW3 Mela Ram has made the improvement and disclosed to Investigating Officer that he has personally saw that dead body of deceased Ashok Kumar was kept in wooden box which was kept in meeting room of Sub jail Una (H.P.). Even PW3 Mela Ram did not report the matter in writing to any competent authority w.e.f. 24.8.2002 to 5.9.2002 and suppressed the fact. We are of the opinion that it is not expedient in the ends of justice to convict the accused person solely on testimony of PW3 Mela Ram because PW3 has given contradictory testimony on dated 5.9.2002 and 01.10.2002 ::: Downloaded on - 15/04/2017 17:54:16 :::HCHP 59 and had made the improvements. We are of the opinion that as PW3 Mela Ram was posted as Santri home guard he was .
directly responsible to inform the incident to the competent authority of law qua murder but PW3 Mela Ram did not disclose the incident of murder w.e.f. 24.8.2002 till 5.9.2002.
Hence non-filing of criminal complaint w.e.f. 24.8.2002 to 5.9.2002 on the part of PW3 Mela Ram has created doubt in the mind of Court and we are of the opinion that testimony of PW3 Mela Ram is not sufficient to convict accused persons keeping in view material improvement in testimony of PW3 Mela Ram recorded on dated 5.9.2002 and 1.10.2002 and keeping in view act and conduct of Mela Ram after alleged incident.
16. We have also carefully perused the testimony of PW2 Rikhi Ram Assistant Superintendent Sub jail Una (H.P.) who has stated in positive manner that meeting time of visitors in sub jail Una (H.P.) was 10 AM to 12 Noon and 3 PM to 5 PM. We fail to understand that how 7-8 persons were allowed to meet co-accused Amrish Rana and co-accused Gurjant who were in judicial custody in violation of jail manual by the staff of jail. PW2 Rikhi Ram Assistant Superintendent Sub jail Una (H.P.) has specifically stated that on dated ::: Downloaded on - 15/04/2017 17:54:16 :::HCHP 60 24.8.2002 PW2 Mela Ram was on santri duty and co-accused Tara Chand was warder of jail. No explanation has been given .
by prosecution as to how 7-8 persons including deceased were allowed to meet co-accused Amrish Rana and co-accused Gurjant after 5 PM contrary to Prison Act and contrary to jail manual. Even PW2 Rikhi Ram officiating Assistant Superintendent sub jail Una (H.P.) has specifically stated in his testimony that hairs and syringe were not recovered in his presence from meeting room of sub jail Una (H.P.) and further stated that keys of outer and inner gate remained with Santri.
We are of the opinion that as per Prison Act and H.P. jail manual purpose of visit is recorded in visit register kept in sub jail Una (H.P.) We have carefully perused the entries recorded in registers placed on record and there is no entry of meeting of 7-8 persons including deceased with co-accused Amrish Rana and co-accused Gurjant Singh after 5 PM on dated 24.8.2002 in jail register. Hence it is held that testimony of PW2 Rikhi Ram has also broken the chain of circumstantial evidence relied by prosecution.
17. Even we have carefully perused the testimony of PW7 Rajesh Kumar who is witness of disclosure statement.
PW7 Rajesh Kumar has stated that he does not know anything ::: Downloaded on - 15/04/2017 17:54:16 :::HCHP 61 about case and further stated that his signatures were obtained in police station by Investigating Agency. We are of .
the opinion that testimony of PW7 Rajesh Kumar is hostile to prosecution and chain of circumstantial evidence is broken as per testimony of PW7 Rajesh Kumar in present case because he does not prove disclosure statement relied by prosecution.
18. Even it is the case of prosecution that co-accused Amrish Rana and co-accused Gurjant during night time on dated 24.8.2002 in connivance with co-accused Tara Chand who was warder of Sub jail Una (H.P.) shifted the dead body of deceased to back side of IPH office after wrapping the same in blanket and placing it in the gunny bag. It is further case of prosecution that thereafter on dated 25.8.2002 in night co-
accused Amrish Rana and co-accused Gurjant came out of jail through window of bathroom of sub jail Una (H.P.) and thereafter transported the dead body to river in village on scooter having registration No. HP-22-8137. It is the case of prosecution that Darshan Singh, Ram Deen, Piara Singh, Tarsem and Maan Singh home guards were on duty on dated 24.8.2002 and 25.8.2002 but prosecution did not examine the above said persons in order to prove the chain of circumstantial evidence. Prosecution has failed to explain the ::: Downloaded on - 15/04/2017 17:54:16 :::HCHP 62 reasons that how co-accused Amrish Rana and co-accused Gurjant who were lodged in Sub jail Una (H.P.) in triple murder .
case succeeded to shift the dead body of deceased Ashok Kumar from meeting room of Sub jail Una (H.P.) to back side of IPH office after wrapping the dead body in blanket and placing the dead body in gunny bag in presence of Darshan Singh, Ram Deen, Piara Singh, Tarsem and Maan Singh home guards who were on 24 hours patrolling duty inside and outside sub jail Una (H.P.) and prosecution did not record their statements in present case in order to complete chain of circumstantial evidence against accused.
19. Submission of learned Additional Advocate General appearing on behalf of the State that as per testimony of PW3 Mela Ram on the concept of last seen theory appeal filed by the appellant be dismissed is rejected being devoid of any force for the reason hereinafter mentioned. As per prosecution story deceased Ashok Kumar was murdered on dated 24.8.2002 after 7 PM in the meeting room of Sub jail Una (H.P.) by co-accused Amrish Rana and co-
accused Gurjant Singh and thereafter the dead body of deceased Ashok Kumar was kept in a wooden box which was kept in the meeting room of Sub jail Una (H.P.). As per further ::: Downloaded on - 15/04/2017 17:54:16 :::HCHP 63 prosecution story on dated 24.8.2002 PW3 Mela Ram personally saw the dead body of deceased Ashok Kumar in the .
wooden box which was kept in the meeting room of Sub jail Una (H.P.). But w.e.f. 24.8.2002 to 5.9.2002 PW3 Mela Ram did not file any FIR against accused persons despite the fact that on dated 24.8.2002 PW3 Mela Ram was on official duty in Sub jail Una (H.P.). Plea of the prosecution that PW3 Mela Ram did not file FIR due to fear and due to advice of co-accused Tara Chand cannot be accepted because PW3 Mela Ram was major at the time of incident and he was under legal obligation to file FIR immediately being public servant and being posted in Sub jail Una (H.P.) at the relevant time as Santri. We are of the opinion that public official is under legal obligation to discharge the public duty properly and efficiently. It is proved on record beyond reasonable doubt that at the time of alleged incident of murder co-accused Amrish Rana and co-accused Gurjant Singh were in judicial custody and we are of the opinion that persons who are in judicial custody and who are under constant surveillance of police officials 24 hours were not in a position to give sufficient threat to PW3 Mela Ram to kill him. Prosecution did not examine any independent corroborative eye witness in ::: Downloaded on - 15/04/2017 17:54:16 :::HCHP 64 order to prove that co-accused Amrish Rana and co-accused Gurjant have theartened PW3 Mela Ram. No explanation has .
been given by prosecution as to how co-accused Amrish Rana and co-accused Gurjant Singh have threatened PW3 Mela Ram when both were in judicial custody in triple murder case and when both were in 24 hours surveillance of home guards and jail officials who were posted in sub jail Una (H.P.) at relevant time. We are of the opinion that PW3 Mela Ram was under
r to legal obligation to file FIR immediately against co-accused Amrish Rana and co-accused Gurjant Singh 24.8.2002. Even statement of PW3 Mela Ram was recorded on dated on dated 5.9.2002 and thereafter supplementary statement of PW3 Mela Ram was recorded on 1.10.2002 and thereafter statement of PW3 Mela Ram was recorded on 21.10.2002 under Section 164 Cr.PC. There is material improvement in the statement of PW3 Mela Ram recorded on different dates. We are of the opinion that it is not expedient in the ends of justice to convict the appellant simply on the testimony of PW3 Mela Ram because PW3 Mela Ram has not personally saw co-
accused Amrish Rana and co-accused Gurjant Singh killing deceased Ashok Kumar with his own eyes because PW3 Mela Ram was not present inside the meeting room of Sub jail Una ::: Downloaded on - 15/04/2017 17:54:16 :::HCHP 65 (H.P.) at the time of incident and as per prosecution story incident of murder took place inside the meeting room .
situated in Sub jail Una (H.P.) on dated 24.8.2002 after 7 PM/7-15 PM. Even as per testimony of PW12 Subhash Chand, PW13 Dina Nath, PW21 Kapil Dogra, PW14 Sat Parkash, PW15 Avtar Singh, PW20 Ashwani Kumar, PW2 Rikhi Ram and PW7 Rajesh Kumar the chain of circumstantial evidence as alleged by the prosecution is broken.
20. Another submission of learned Advocate General appearing on behalf of the State that accused persons Amrish Rana and co-accused Gurjant Singh Additional transported the dead body from meeting room of Sub jail Una (H.P.) to a river at a distance of 40 KM and on this ground appeal filed by the appellant be dismissed is also rejected being devoid of any force for the reason hereinafter mentioned. It is proved on record that seven to eight persons were posted in Sub jail Una (H.P.) at the time of alleged incident. It is well settled law that accused persons who were in judicial custody could not go out of the jail premises and accused Gurjant was kept in prison room. No explanation has been given by prosecution as to how co-accused Amrish Rana and co-accused Gurjant Singh took the dead body of deceased ::: Downloaded on - 15/04/2017 17:54:16 :::HCHP 66 Ashok Kumar from meeting room of Sub jail Una (H.P.) in the presence of seven to eight police officials who were on duty .
on dated 24.8.2002 and 25.8.2002. We are of the opinion that it is improbable to carry the dead body of deceased Ashok Kumar in a gunny bag from jail premises in the presence of five to seven jail officials who were on 24 hours surveillance duty inside and outside jail premises in Sub jail Una (H.P.).
Even as per testimony of PW11 Prabhat Chand Assistant Superintendent Sub jail Una (H.P.) keys of lock up gate should remain with Assistant Superintendent Jail as per Police Act and as per H.P. Jail Manual. We fail to understand how co-accused Amrish Rana and co-accused Gurjant Singh carried the dead body of deceased Ashok Kumar in a gunny bag from the meeting room of jail premises when there was surveillance in outer and inner gates of sub jail Una (H.P.) continuously 24 hours.
21. Submission of learned Additional Advocate General that both accused persons Amrish Rana and co-
accused Gurjant Singh during the mid night broken the iron windows of bath room and thereafter fled from the window of bath room and thereafter transported the dead body to a river on scooter and on this ground appeal filed by appellant be ::: Downloaded on - 15/04/2017 17:54:16 :::HCHP 67 dismissed is also rejected being devoid of any force for the reason hereinafter mentioned. As per prosecution story PW13 .
Dina Nath had conducted welding work of the window of Sub jail Una (H.P.) but when PW13 Dina Nath welder appeared in the witness box he has stated that he did not conduct welding work of the strip of iron window in Sub jail Una (H.P.). PW13 Dina Nath has stated that he had conducted welding work of the main gate only. The testimony of PW13 Dina Nath is hostile to the prosecution.
22.
rAnother
submission of learned
Advocate General appearing on behalf the State that as per Additional disclosure statement given by accused placed on record appeal filed by the appellant be dismissed is also rejected being devoid of any force for the reason hereinafter mentioned. We have carefully perused the disclosure statement recorded under Section 27 of the Indian Evidence Act. The marginal witnesses of disclosure statement did not support prosecution story as alleged by prosecution. In view of above stated facts we are of the opinion that disclosure statement of accused placed on record is not helpful to prosecution because marginal witnesses of disclosure statement did not support prosecution story.
::: Downloaded on - 15/04/2017 17:54:16 :::HCHP 6823. Another submission of learned Additional Advocate General appearing on behalf of the State that on the .
basis of statement of PW3 Mela Ram recorded under Section 164 Cr.PC by Additional Chief Judicial Magistrate Una (H.P.) appeal filed by the appellant be dismissed is also rejected being devoid of any force for the reason hereinafter mentioned. We have carefully perused the statement of PW3 Mela Ram recorded by Additional Chief Judicial Magistrate Una (H.P.). Learned Additional Chief Judicial Magistrate has not recorded the statement of PW3 Mela Ram on oath. It is well settled law that any statement recorded without oath by Judicial Magistrate can be used only for corroborative and contradiction purpose only and cannot be used as substantive evidence for conviction. It is held that as the statement of PW3 Mela Ram was recorded by Additional Chief Judicial Magistrate Una (H.P.) without oath hence the same is not sufficient to convict the appellant in criminal case of murder and same could be used to contradict witness in the manner as provided by Section 145 of Indian Evidence Act 1872.
24. Another submission of learned Additional Advocate General appearing on behalf of the State that disposable syringe were collected from the meeting room of ::: Downloaded on - 15/04/2017 17:54:16 :::HCHP 69 Sub jail Una (H.P.) where the dead body of deceased Ashok Kumar was kept in a wooden box by accused persons namely .
Gurjant and Amrish Rana and on this ground appeal filed by the appellant be dismissed is also rejected being devoid of any force for the reason hereinafter mentioned. There is no evidence on record in order to prove that finger prints of Gurjant were available upon disposable syringe. We are of the opinion that accused Gurjant is not connected with the use of beyond reasonable doubt.
25. Submission disposable syringe in the commission of offence of murder of learned Additional Advocate General appearing on behalf of State that deceased Ashok Kumar was killed by co-accused Amrish Rana and co-accused Gurjant Singh in meeting room of Sub jail Una (H.P.) and after killing deceased Ashok Kumar his dead body was kept in a wooden box which was kept in the meeting room of Sub jail Una (H.P.) and on this ground appeal filed by appellant be dismissed is also rejected being devoid of any force for the reason hereinafter mentioned. We are of the opinion that as per Prison Act and jail manual no outsider could visit in jail premises without entry in the visitor register. Prosecution did not prove on record that name of deceased Ashok Kumar was ::: Downloaded on - 15/04/2017 17:54:16 :::HCHP 70 entered in the visitor register of sub jail Una (H.P.) on dated 24.8.2002. There is no entry in sub jail Una (H.P.) regarding .
deceased Ashok Kumar in order to prove that deceased came to meet co-accused Amrish Rana and co-accused Gurjant Singh in sub jail Una (H.P.). We are of the opinion the chain of meeting of deceased Ashok with co-accused Amrish Rana and co-accused Gurjant Singh is broken by way of non-entry of deceased Ashok Kumar in visiting register of sub jail Una (H.P.). It is proved on record that at the time of alleged incident of murder co-accused Amrish Rana and co-accused Gurjant were in judicial custody. As per Prison Act and as per H.P. Jail Manual admission of outsider to meet with accused who is in judicial custody is always with the permission of Superintendent or Assistant Superintendent. In the present case there is no evidence on record that PW2 Rikhi Ram who was officiating Superintendent of sub jail Una (H.P.) has given permission to deceased Ashok Kumar to meet co-accused Amrish Rana and co-accused Gurjant Singh in the meeting room of sub jail Una (H.P.)on dated 24.8.2002 in the meeting room. Non entry of deceased Ashok Kumar in the visitor register regarding meeting with co-accused Amrish Rana and co-accused Gurjant Singh in Sub jail Una (H.P.) on dated ::: Downloaded on - 15/04/2017 17:54:16 :::HCHP 71 24.8.2002 has created doubt in the mind of Court qua commission of criminal offence as alleged by the prosecution.
.
26. Another submission of learned Additional Advocate General appearing on behalf of the State that co-
accused Amrish Rana and co-accused Gurjant were taken out of jail premises in order to meet the call of nature because the toilets situated in jail premises was out of order and was chocked and on this ground appeal filed by appellant be dismissed is also rejected being devoid of any force for the reason hereinafter mentioned. We are of the opinion that as per Prison Act and as per HP Jail Manual no prisoner lodged in the jail could be taken out of the prison cell and outside main gate of jail without prior written permission of Superintendent or Assistant Superintendent of Jail. In the present case there is no evidence on record in order to prove that prior permission of officiating Superintendent sub jail Una (H.P.) namely PW2 Rikhi Ram was obtained on dated 24.8.2002 to take out co-
accused Amrish Rana and co-accused Gurjant Singh outside the main gate of jail premises to meet call of nature of accused persons. Even Sweeper posted in jail premises did not state that the toilet in the jail premises was chocked on dated 24.8.2002. Even as per prosecution story the incident ::: Downloaded on - 15/04/2017 17:54:16 :::HCHP 72 took place at 7.15 PM and as per Prison Act and HP Jail Manual all the prisoners are taken out from prison cell after sun rise in .
the presence of Superintendent or Assistant Superintendent jail and are lodged in the prison cell before sun set in the presence of Superintendent or Assistnat Superintendent of sub jail Una (H.P.). The above stated facts cast doubt in the prosecution story in the present case. Even as per duty chart placed on record many persons were posted in Sub jail Una (H.P.) on dated 24.8.2002 and 25.8.2002 and as per prosecution story co-accused Amrish Rana and co-accused Gurjant Singh have murdered deceased Ashok Kumar in the meeting room of jail premises on dated 24.8.2002 but till 2.9.2002 no FIR was lodged by any official of jail premises qua murder of deceased Ashok Kumar which creates doubt in the mind of Court. Even as per prosecution story the dead body of deceased Ashok Kumar was lifted from the meeting room of jail premises to a river which was situated at a distance of 40 Km from jail premises despite the fact that many jail officials were posted in sub jail premises Una (H.P.). The fact that co-
accused Amrish Rana and co-accused Gurjant Singh succeeded in taking out the dead body of deceased Ashok Kumar from jail premises despite twenty four hours ::: Downloaded on - 15/04/2017 17:54:16 :::HCHP 73 surveillance inside and outside jail premises creates doubt in the mind of Court qua story as alleged by prosecution. Even .
as per document relating to passing in and out of jail gates placed on record name of co-accused Amrish Rana and co-
accused Gurjant Singh did not figure for passing out of jail premises in order to meet call of nature which also creates doubt in the mind of Court. Even on dated 24.8.2002 the sun rises at 5.56 AM and sets at 6.51 PM. We are of the opinion that no jail official has a right to keep under trial prisoner out of the prison cell after sun set except with the prior written permission of Superintendent or Assistant Superintendent of Jail as per law. No plausible explanation has been given by the prosecution as to how co-accused Amrish Rana and co-
accused Gurjant Singh succeeded to take out the dead body of deceased Ashok Kumar from the meeting room of jail premises despite the fact that many persons were on patrolling duty inside and outside the jail premises continuously for 24 hours as per Prison Act and as per HP Jail Manual.
27. Another submission of learned Additional Advocate General appearing on behalf of the State that hairs were collected from the meeting room of Sub jail Una (H.P.) ::: Downloaded on - 15/04/2017 17:54:16 :::HCHP 74 where dead body of deceased Ashok Kumar was found and on this ground appeal filed by appellant be dismissed is also .
rejected being devoid of any force for the reason hereinafter mentioned. We have carefully perused Chemical Analyst report placed on record. There is no mention in the report of Chemical Analyst that human hairs found in the meeting room of Sub jail Una (H.P.) wherein the dead body of deceased Ashok Kumar was kept tallied with the hairs of accused Gurjant. Chemical Analyst has not mention in his report that he has compared collected hairs from the meeting room of Sub jail Una (H.P.) with the hairs of accused Gurjant. We are of the opinion that it is not expedient in the ends of justice to convict accused person on the basis of defective chemical analysis report.
28. Even learned trial Court has held in para Nos. 7 and 8 of judgment that prosecution failed to establish on record that Gurjant Singh along with co-accused Amrish Rana removed dead body of Ashok Kumar from sub jail Una (H.P.) to river in village Khad with intention to cause disappearance of evidence regarding murder of Ashok Kumar to screen themselves from legal punishment. Hence even as per ::: Downloaded on - 15/04/2017 17:54:16 :::HCHP 75 findings of learned trial Court chain of circumstantial evidence is broken in present case.
.
29. Case of the prosecution is based upon circumstantial evidence and last seen theory. It was held in case reported in 2013 Criminal Law Journal 2040 titled Parkash Vs. State of Rajasthan that there are five golden principles in the case of circumstantial evidence. (1) That circumstances from which the conclusion of guilty is to be drawn should be fully established and the accused must be and not merely may be guilty. (ii) That facts so established should be consistent with the hypothesis of the guilt of accused. (iii) That circumstances should be of a conclusive nature. (iv) That Chain of evidence should be complete. (v) That innocence of accused should be ruled out. In the present case chain of circumstantial evidence is broken as per testimonies of PW2 Rikhi Ram, PW7 Rajesh Kumar, PW12 Subhash, PW13 Dina Nath, PW14 Sat Parkash, PW15 Avtar Singh, PW20 Ashwani. Also see 2012 (2) SCC 399 titled Madhu Vs. State of Kerala. Also see 2010 (15) SCC 622 titled Dilip Singh Moti Singh Vs. State of Gujarat. Also see 2006 (10) SCC 172 titled Ramreddy Rajesh Khanna Vs. State of Andhra Pradesh. Also see 2006 (10) SCC 681 titled Trimukh ::: Downloaded on - 15/04/2017 17:54:16 :::HCHP 76 Maroti Kiran Vs. State of Maharashtra. Also see 1992 (3) SCC 43 titled Mulakh Raj and another Vs. Satish Kumar and others.
.
Also see 1989 Supp. (1) SCC 560 titled Ashok Kumar Chatterjee Vs. State of M.P. Also see 1987 (1) SCC 1 titled Balwinder Singh Vs. State of Punjab. Also see 1985 supp. SCC 79 titled State of U.P. Vs. Sukhbansi and others. Also see 1984 (4) SCC 116 titled Sharad Birdhichand Sarda Vs. State of Maharashtra. Also see 1983 (2) SCC 330 titled Earabhadrappa r to Vs. State of Karnataka. Also see 1977 (2) SCC 99 titled Hukam Singh Vs. State of Rajasthan. It was held in case reported in (2005) 9 SCC 765 titled Anjlus Dungdung Vs. State of Jharkhand that suspicion however strong cannot take place of proof. It was held in case reported in (2010) 11 SCC 423 titled Nanhar Vs. State of Haryana that prosecution must stand or fall on its own leg and it cannot derive any strength from the weakness of the defence. Also See: (1984) 4 SCC 116 Sharad Birdhichand Sarda Vs. State of Maharashtra.
It is well settled law that conjecture or suspicion cannot take place of legal proof. See: AIR 1967 SC 520 Charan Singh Vs. The State of Uttar Pradesh. Also See: AIR 1971 SC 1898 Gian Mahtani Vs. State of Maharashtra. It was held in case reported in AIR 1979 SC 1382 State (Delhi Administration) Vs. Gulzarilal ::: Downloaded on - 15/04/2017 17:54:16 :::HCHP 77 Tandon that suspicion however strong cannot take place of legal proof. Also See: AIR 1983 SC 906 titled Bhugdomal .
Gangaram and others Vs. The State of Gujarat. Also See: AIR 1985 SC 1224 titled State of UP Vs. Sukhbasi and others.
30. In view of the above stated facts it is held that learned trial Court has not properly appreciated oral as well as documentary evidence placed on record while convicting appellant. We accept this appeal filed by appellant Gurjant Singh and we set aside the judgment and sentence imposed by learned trial Court under Section 302 IPC read with Section 120-B IPC upon appellant Gurjant Singh. We acquit appellant Gurjant Singh qua offence punishable under Section 302 IPC read with Section 120-B IPC by way of giving him benefit of doubt. Bail bonds and surety bonds furnished by the appellant are discharged. Appellant be released forthwith if not required in any other criminal case. Appeal is disposed of. Pending application(s) if any are also disposed of.
(Sanjay Karol), Judge.
(P.S.Rana),
March 30,2015 (MS) Judge.
::: Downloaded on - 15/04/2017 17:54:16 :::HCHP