Himachal Pradesh High Court
Man Singh vs State Of H.P. Rt on 19 December, 2015
Bench: Rajiv Sharma, Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.414 of 2014.
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Reserved on: 11.12.2014.
Date of Decision : 19/12/2015
Man Singh .....Appellant.
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Versus
State of H.P. rt .....Respondent.
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge. The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting? Yes.
For the Appellant: Mr.Suneel Awasthi, Advocate.
For the Respondent: Mr. M. A. Khan, Additional Advocate General.
_______________________________________________________ Per Sureshwar Thakur, Judge
1. The instant appeal is directed against the impugned judgment rendered on 2.5.2013 by the learned Sessions Judge, Kullu, Himachal Pradesh, in Sessions Trial No.68 of 2012 whereby the learned trial Court convicted and sentenced the accused/appellant to undergo ::: Downloaded on - 15/04/2017 19:33:40 :::HCHP 2 life imprisonment and to pay a fine of Rs.10,000/- and in default thereof the accused was sentenced to further undergo simple .
imprisonment for six months for his having committed an offence punishable under Section 302 read with Section 34 of the Indian Penal Code (hereinafter referred to as the IPC).
2. The brief facts of the case are that Bir Singh had invited of two deities on 24.4.2012 in his house and on that day, many persons had assembled in his house.
rt On the evening of 25.4.2012, some persons were busy in preparing meal and some were sitting in front of the house of co-accused Moti Ram and were performing 'Kirtan'. At about 11 p.m. Bir Singh went to serve meal to the devotees, namely, Bhag Chand, Beli Ram, Vijay Kumar, Dola Ram, Ram Saran and others, who were performing 'Kirtan'. Accused Man Singh came there and threatened them to stop the 'Kirtan', otherwise he will commit murder.
Accused Man Singh left the room and came after about five minutes and had an altercation with Beli Ram. In the meantime, co-accused Moti Ram came there wielding a knife in his hand and stabbed Beli Ram in the chest, who fell on the floor. Beli Ram died on the way to hospital and taken to the house of his brother Sabja Chand. Thereafter, dead body was kept in the house of Sabja Chand and the police was informed by PW-1 Bir Singh. The police visited the spot and recorded the statement of PW-1 Bir Singh under Section 154 of the Code of ::: Downloaded on - 15/04/2017 19:33:40 :::HCHP 3 Criminal Procedure, comprised in Ex.PW1/A on the basis of which FIR Ex.PW9/A was registered in the police station. The police conducted the .
investigation in the case.
3. On completion of the investigation, into the offence, allegedly committed by the accused, report under Section 173 Cr.P.C.
was prepared and filed in the Court.
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4. The appellant/accused herein and co-accused Moti Ram were charged, for, theirs having committed an offence punishable rt under Section 302 read with Section 34, IPC, by the learned trial Court, to, which they pleaded not guilty and claimed trial.
5. In order to prove its case, the prosecution examined 10 witnesses. On closure of the prosecution evidence, the statements of accused, under Section 313 of the Code of Criminal Procedure, were recorded, in, which they pleaded innocence and claimed false implication. However, the accused also examined three witnesses in defence.
6. The accused/appellant is aggrieved by the judgment of conviction recorded by the learned trial Court. Shri Suneel Awasthi, learned Advocate has concerted to vigorously contend before this Court qua the findings of conviction, recorded by the learned trial Court, being not based on a proper appreciation of evidence on record by it, rather, theirs being sequelled by gross mis-appreciation of material on ::: Downloaded on - 15/04/2017 19:33:40 :::HCHP 4 record. Hence, he contends qua the findings of conviction being reversed by this Court, in the exercise of its appellate jurisdiction and .
theirs being replaced by findings of acquittal.
7. On the other hand, the learned Additional Advocate General appearing for the State, has, with considerable force and vigour, contended that the findings of conviction, recorded by the Court of below, are based on a mature and balanced appreciation of evidence on record and they do not necessitate interference, rather merit rt vindication.
8. This Court with the able assistance of the learned counsel on either side, has with studied care and incision, evaluated the entire evidence on record.
9. The first witness, who stepped into the witness box in proof of the prosecution case is PW-1, Bir Singh. He deposes that on 24.4.2012, he had invited deities in his house. He further deposes that two deities had come to his house and many persons had also come along with deities to his house. On 25.4.2012, in the evening, the congregation was busy in preparing meal and some of the devotees were sitting in his house in front of the house of Moti Ram and performing 'Kirtan'. He deposes that some persons were preparing meat in the corner of verandah. He continues to depose that at about 11 p.m. Moti Ram, Bhag Chand, Beli Ram, Vijay Kumar, Dola Ram, Ram ::: Downloaded on - 15/04/2017 19:33:40 :::HCHP 5 Saran and others were performing 'Kitran'. When this witness proceeded to serve meal to the persons sitting in the room of the .
house of Moti Ram, in the meantime, Man Singh son of Radhu came there and warned to stop Kirtan, and threatened that otherwise, he would commit murder. PW-1 further deposes that thereafter he left the room and after about five minutes again entered in the room and of entered into an argument and altercation with Beli Ram. In the meantime, Moti Ram also arrived there and had an altercation with Beli rt Ram. Both of them have been deposed to have dragged Beli Ram out of the room. He deposes that he along with others followed them.
Thereafter Moti Ram, who was having a knife in his right hand stabbed Beli Ram in his chest. Beli Ram has been deposed by this witness to have told him that he had been stabbed by Moti Ram and thereafter he fell on the floor. Subsequently, blood started oozing out from the chest of Beli Ram and when they were shifting Beli Ram to the hospital, accused Man Singh has been deposed to have threatened that he will kill every one with 'Behli'. It has been stated by this witness that when they were taking Beli Ram to hospital, the house of Sabja Chand falls in between, hence, he was taken to the house of Sabja Chand, where Beli Ram was found dead. Thereafter, the dead body of Beli Ram was kept in the house of Sabja Chand. Man Singh and Moti Ram has been deposed by this witness to have committed murder of ::: Downloaded on - 15/04/2017 19:33:40 :::HCHP 6 Beli Ram in furtherance of their common intention. He further deposes that he had reported the matter to the police. His statement Ex.PW1/A .
has been deposed by this witnesses to have been recorded by the police. He continue to depose that on 26.4.2012, the police had come to the spot and took into possession, knife, blood stained jacket, blood, blood stained soil, controlled sample vide memo Ex.PW1/B in his of presence and in the presence of Bhag Chand. The articles have been deposed by this witness to have been kept in parcels and the parcels rt have been deposed to have been sealed with seal S. Sample of seal 'S"
has been deposed by this witness to have been drawn on a piece of cloth Ex.PW1/C, which has been deposed to be bearing his signature as well as the signatures of Bhag Chand. He further deposes that the seal after use was handed over to him. The inquest papers Ex.PW1/D and Ex.PW1/E have been deposed by this witness to have been prepared by the police. He had identified the accused in the Court to be the same.
In cross-examination, he has deposed that he had not served any liquor. However, he deposes that he cannot say as to whether from where the devotees had brought liquor. He denied that devotees were consuming liquor in the room. He also deposes in his cross-
examination that after conclusion of the altercation, all the persons come out including the accused and the deceased. He has stated in his deposition comprised in his cross-examination that at the relevant time ::: Downloaded on - 15/04/2017 19:33:40 :::HCHP 7 Raj Kumar was also there. 10-15 persons have been deposed by this witness to have assembled on the spot. In his cross-examination, he .
deposes that Moti Ram was already having a knife in his hand and that Moti Ram stabbed Beli Ram in his presence.
10. PW-2, Bhag Chand in his deposition comprised in his examination-in-chief has deposed that on 25.4.2012, a religious of function was organized in the house of Bir Singh and some of the devotees were performing 'Kritan'. At about 11.00 p.m., Bir Singh has rt been deposed by this witness to have come to serve food to the congregation. In the meantime, accused Man Singh has been deposed to have entered in the room and threatened either to stop the 'kirtan', otherwise, he would commit murder and after meteing threats he left the room. After five minutes, Man Singh has been deposed by this witness to have again entered the room. Man Singh and Moti Ram, both of whom this witness has identified in the Court, have been further deposed by this witness to have dragged Beli Ram out of the room. In the verandah , accused Man Singh has been deposed by this witness to have caught hold of Beli Ram and Moti Ram stabbed Beli Ram in his chest with knife which he was carrying in his left hand.
Thereafter, he deposes that blood started oozing out of the wound and that Beli Ram told him that he was stabbed by Moti Ram and he fell down on the floor. He continues to depose that they carried Beli Ram ::: Downloaded on - 15/04/2017 19:33:40 :::HCHP 8 for treatment towards Neoli and when they reached at Neoli, Sabja Chand, brother of Beli Ram, after checking him, found him dead. He .
further deposes that the dead body of Beli Ram was kept in one room in the house of Sabja Chand. The police has been deposed by this witness to have came the next morning. He along with Bir Singh have been deposed by him to have remained associated in the investigation of conducted by the police. He further deposes that on 26.4.2012, the police took into possession various articles vide memo Ex.PW1/B in his rt presence and in the presence of Bir Singh. The articles have been deposed by this witness to have been sealed with seal 'S' in cloth parcels. Sample of seal has been deposed by this witness to have been drawn on a piece of cloth, Ex.PW1/C and Ex.PW1/C when have been deposed by this witness to be bearing his signature as well as the signatures of Bir Singh. The parcels Ex.P-1 to Ex. P-5 have been deposed by this witness to be the same. They have been deposed by this witness to have been prepared and sealed at the spot. Articles Ex.P-6 to Ex.P-11 have been identified by this witness to be the same, which were sealed by the police in his presence. Seal after its use has been deposed by this witness to have been handed over to PW-1 Bir Singh. In his cross-examination, he deposed that they noticed knife in the hand of Moti Ram. He deposes that 40-50 persons were present on the spot. He continues to depose that before falling on the floor, Beli ::: Downloaded on - 15/04/2017 19:33:40 :::HCHP 9 Ram told that he was stabbed by Moti Ram. He has also deposed in his cross-examination that knife was thrown by the accused on the side of .
verandah and was recovered from that place.
11. PW-3 Vijay Kumar deposes that on 24.4.2012, he had gone with his wife to the house of Beli Ram, who is maternal uncle of his wife at Village Satesh. He deposes that Beli Ram, father of PW-1 had of invited two deities and on 25.4.2012, there was also religious function in the house of PW-1. At about 11 p.m., he along with Ram Saran, rt Dola Ram, Moti Ram, Belu Ram, Beli Ram, Bhag Chand etc., were sitting in the room of the house of Moti Ram and were performing 'Kritan'. At about 11. p.m. accused Man Singh entered the room and threatened not to make noise, otherwise, he would commit murder. He further deposes that, thereafter he left the room and returned after five minutes and had a scuffle with Beli Ram. He further deposes that, subsequently, they came out of the room in the verandah and followed them. In the verandah, Man Singh caught hold of Beli Ram and Moti Ram stabbed Beli Ram with knife in his chest. Both the accused have been identified by this witness in the Court to be the same. He has also deposed that Beli Ram told them that he has been stabbed by Moti Ram and thereafter, he fell down on the floor. He continued to depose that blood started coming out from the wound. He deposes that thereafter they lifted Beli Ram for his treatment and brought him to ::: Downloaded on - 15/04/2017 19:33:40 :::HCHP 10 Neoli. When they reached near the house of Sabja Chand, brother of Beli Ram, Subja Chand was called and he found Beli Ram to be dead.
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Thereafter, the dead body of Beli Ram was kept in one room of the house of Sabja Chand. Knife Ex.P-7 has been deposed by this witness to be the same. In his cross-examination, he deposes that he heard Beli Ram saying that he was given knife blow by Moti Ram.
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12. PW-4 Dr. M.L. Bandhu, has proved on record post mortem report Ex.PW4/C.rt He deposes that he along with Dr. Ashok Rana conducted the post mortem examination of the deceased. On examination of the dead body, they noticed:-
"EXTERNAL APPEARANCE:-
Moderately built body measuring 5x2" rigor mortis present. No decomposition was seen. The person was wearing leg trouser, white shirt and blue underwear.
We noticed two injuries on the dead body, on over right chest 3 cm from right nipple measuring 2 cm and wound gaping was present. Another wound was found on posterior aspect of right thigh measuring 3 cm and wound was gaping exposing underline muscle. CRANIUM AND SPINAL CORD : Normal.
THORAX A stab wound 3cm medial to right nipple measuring 2 cm. was seen and a probe could be passed up to the depth of 5 cm. There was extra vasation on blood in intercostal muscles and pectralis major and punctured. Extra vasation approximately 6x7 cm in size. Right lung showed punctured wound present in middle lobe and the lung was collapsed Frank blood approx. 300-350 ml was present on right thoracic cavity. The rest of the findings were normal."::: Downloaded on - 15/04/2017 19:33:40 :::HCHP 11
He deposes that on the basis of the findings given above, they opined that the person died owing to haemorrhage (intra thoracic) causing .
severe respiratory distress and cardio respiratory collapse. Viscera has been deposed by this witness to have been sent for chemical examination. He further deposes that as per report Ex.PW4/b, no alcohol/poison could be detected in the contents of the parcel sent for of analysis. Post mortem report Ex.PW4/C has been deposed by this witness to be bearing his signature as well as the signatures of Dr. rt Ashok Rana. He further deposes that stab injury sustained by deceased is possible with the help of knife Ex.P-7, shown to this witness in Court. In cross-examination, he has denied the suggestion that injury sustained by the deceased can possibly be caused by fall on hard surface.
13. PW-5, HHC Laxman Dass deposes that on 4.5.2012, MHC Tara Chand, P.S. Bhunter had handed over to him six parcels duly sealed with seals along with sample seals vide R.C. No.46/12 and he deposited the same at RFSL, Gutkar and thereafter handed over the receipt to MHC.
14. PW-6 M.C. Ved Vayas, proved Ex.PW4/A, copy of report No.4, dated 26.4.2012 which has been deposed by this witness to be the true and correct copy of the original brought by him in the Court.
::: Downloaded on - 15/04/2017 19:33:40 :::HCHP 1215. PW-7 Rajesh Kumar, Assistant Director, Physics and Ballistics, Regional Forensic Science Laboratory, Mandi deposes that .
two sealed parcels were received in the laboratory on 4.5.2012 through C, Luxman Dass and on their examination, he issued report Ex.PW7/A. Ex.P-4 and Ex.P-5 have been deposed by this witness to be the same parcels which bears his signatures. In cross-examination, he has of denied the suggestion that the case property was not received for chemical examination.
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16. PW-8 SI-SHO, Lal Chand deposes that after completion of investigation and receipt of reports of chemical examiner, he prepared the challan and presented the same in the Court.
17. PW-9 H.C. Tara Chand deposes that on 26.4.2012, he was officiating SHO of P.S. Bhunter and on receipt of statement under Section 154, Cr.P.C. recorded by SI-SHO, Ashok Sain, he recorded FIR Ex.PW9/A. He further deposes that on 26.4.2012, SI-SHO Ashok Kumar deposited with him a parcel sealed with 8 seals of seal 'S' stated to be containing blood stained jacket of deceased Beli Ram, another parcel, sealed with six seals of seal S, stated to be containing knife, third parcel, sealed with four seals of seal S, stated to be contained soil, fourth parcel sealed with 4 seals of seal S, stated to be containing a blood sample in a matchbox and fifth parcel sealed with 4 seals of seal S, stated to be containing controlled sample of soil and sand along ::: Downloaded on - 15/04/2017 19:33:40 :::HCHP 13 with sample seal. Entry at serial No.69 of the Register No.19 has been made by him. He further deposes that on the same day C. Bhupinder .
Singh deposited viscera of deceased with him qua which he made an entry at Sr. No. 70 of 2012 in the register. He further deposed that on the same day, C. Bhupinder Singh deposited with him a parcel sealed with 4 seals of seal CH, stated to be containing clothes of the deceased of which were entered by him at serial No. 71 of the register. He continues to depose that aforesaid articles were sent to RFSL, Gutkar rt through HHC Luxman Dass No.154 vide R.C. No. 46, who after depositing the case property handed over the R.C and receipt to him.
He proved Ex.PW9/B, copy of abstract of Malkahana register and Ex.PW9/C, copy of R.C.. Ex.PW9/B and Ex.PW9/C have been deposed by this witness to be true and correct copies of the original brought by him in Court.
18. PW-10 S.I. Ashok Kumar deposes that he had partly investigated the case. He deposes that on 26.4.2012, at about 4.15 a.m., he received information from Pradhan, G.P. Deori Dhar and report Ex.PW6/A was recorded in the daily diary register. Thereafter, he visited the spot along with other members of the police party. He deposes that when, he reached Neoli, he recorded the statement of Bir Singh under Section 154, Cr.P.C., Ex.PW1/A, which was sent to police station for registration of the FIR. He further deposes that he took ::: Downloaded on - 15/04/2017 19:33:40 :::HCHP 14 into possession the dead body of the deceased and prepared inquest papers Ex.PW1/D and Ex.PW1/E. He further deposes that thereafter .
he went to the spot along with complainant Bir Singh and prepared the spot map Ex.PW10/A. He further deposes that he took into possession blood along with controlled sample lying in the verandah of Moti Ram's house, knife, the blood stained jacket, which was worn by Beli Ram, of vide memo Ex.PW1/B in the presence of witnesses. These articles have been deposed by this witness to have been sealed in separate parcels rt with seal S and the sample of the seal impression was drawn on separate piece of cloth Ex.PW1/C. The accused have been deposed by this witness to have been arrested vide memo Ex.PW10/D and Ex.PW10/E. He further deposes that in his investigation, it had come that two deities were invited by PW-1 Bir Singh in his house and 'Devloos' of deity were performing 'kirtan' and that accused persons attacked deceased Beli Ram. Accused Moti Ram stabbed Beli Ram and accused Man Singh caught hold of deceased. In cross-examination, he deposes that when they reached Neoli, many people had assembled on the spot and the proceeding at Neoli took about 1 or 2 hours. He further deposes that the knife was taken into possession from the spot.
He has admitted the suggestion that knife is not in a bent condition in photograph Ex. C-3 and Ex. C-6. He deposes that the knife may have bend when the same was kept in jar. He denied the suggestion that he ::: Downloaded on - 15/04/2017 19:33:40 :::HCHP 15 had not investigated the case properly. It has been denied by this witness that no recoveries were made from the spot and that the case .
property was tampered with. He has also denied the suggestion that the finger prints found on the knife were not intentionally taken by the police party. He has further denied the suggestion that a false case has been registered against accused persons at the instance of the of complainant party.
19. The learned trial Court construed the testimonies of PW-1, rt PW-2 and PW-3 qua the incident being imbued with veracity. The reason as put forth by the learned trial Court in imputing/imbuing credibility to the testimonies qua the incident of PW1, PW2 and PW-3 was founded on the fact of theirs being eye witnesses or theirs having rendered an inspiring vivid ocular version qua the occurrence, besides with their testimonies being bereft of any inter se or intra se contradictions were hence construed to be inspiring confidence.
Consequently, the learned trial Court had found it safe and fit, on the strength on their testimonies to record findings of conviction against the accused. Moreover, the learned trial Court also relied upon the testimony of PW-4 Dr. M.L. Bandhu, who proved post mortem report Ex.PW4/C and had unequivocally deposed qua the fact of fatal injuries as stood sustained by the deceased being sustainable or causable by ::: Downloaded on - 15/04/2017 19:33:40 :::HCHP 16 knife, Ex. P-7, deposed by the purported eye witnesses to the incident to have been used by accused Moti Ram.
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20. Accused Moti Ram under a rendition of this Court of 19.08.2014 in Criminal Appeal No. 4060 of 2013 stands acquitted. Since the role attributed to accused Man Singh is of his being in the company of accused Moti Ram at a stage when the latter purportedly delivered a of blow with knife Ext.P-7 on the person of the deceased sequelling injuries which as displayed by Ext.PW-4/C proven by PW-4 led to the rt demise of Beli Ram. This Court has in its rendition of 19.08.2014 on an incisive reading of the depositions of the material witnesses recorded a firm conclusion of the testimonies of the purported eye witnesses to the occurrence not acquiring any hue of veracity for sustaining the prosecution version of co-accused Moti Ram who therein stood acquitted by it having committed the murder of Beli Ram. With the ascribed inculpatory role to co-accused Moti Ram qua his committing the murder of Beli Ram standing dispelled, the role of co-accused Man Singh to whom the prosecution ascribes the role of his being in the company of co-accused Moti Ram at the relevant time, also stands negatived. The aforesaid conclusion of the inculpatory role attributed by the prosecution to accused Man Singh of his being in the company of co-accused Moti Ram standing dispelled arising from the factum of co-accused Moti Ram standing acquitted by this Court under its ::: Downloaded on - 15/04/2017 19:33:40 :::HCHP 17 rendition of 19.08.2014 nonetheless it may not be appropriate to thereupon form any formidable conclusion qua the negation of the .
inculpatory role aforesaid standing ascribed to accused Man Singh unless the evidence on record is delved into. Consequently, this Court proceeds to embark upon an in depth analysis of the testimonies of the purported eye witnesses of the prosecution witnesses, who deposed as of PW-1, PW-2 and PW-3.
21. For the reasons to be recorded hereinafter, not only the rt testimonies of the purported eye witnesses to the occurrence are gripped with a vice of severe and blatant interse and intra se contradictions, hence rendering them unworthy of credence, as also the probative value of knife, Ex.P-7 recovered under recovery memo Ex.PW1/B in its purportedly connecting the principal accused Moti Ram in the commission of the offence alleged against them, looses vigour and potency. Consequently, this Court would also not imbue/impute any evidentiary value to the post mortem report, Ex.PW4/C proved by PW-4, in which he has disclosed qua the fatal injuries sustained by the deceased being causable or sustainable by the user of knife, Ex. P-7.
22. Initially, the testimony of PW-1 is to be adverted to. On its close and incisive reading, it, emanates though his having deposed in his examination-in-chief, qua the factum of Man Singh accused having arrived at the site of occurrence and his having meted threats against ::: Downloaded on - 15/04/2017 19:33:40 :::HCHP 18 the 'kirtan', organized in the house of PW-1, being continued, in absence, whereof, he threatened that he would commit murder.
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However, subsequently on his departure from the place of occurrence, he has been deposed to have re-entered the room and to have had an altercation with Beli Ram, in which altercation with Beli Ram, accused Man Singh was joined by accused Moti Ram. Both have been deposed of to have dragged Moti Ram out of the room to the verandah. However, he has deposed that Moti Ram, who was having a knife in his right rt hand, stabbed Beli Ram in his chest. In the examination-in-chief of PW-1 it stands emerged qua the deceased Beli Ram before falling on the floor having communicated to him of his having been stabbed by Moti Ram. In his cross-examination, he has deposed that at the relevant time Raj Kumar was also there. However, Raj Kumar stood not joined as a witness. Surprisingly, also when he concedes to the fact of 10-15 persons having assembled on the spot, none interceded to halt the scuffle which ensued inter se Beli Ram and both the accused. Moreover, he tacitly concedes to the fact of the devotees consuming liquor in the room which tacit admission qua the said fact arising in his cross-examination qua his feigning ignorance as to wherefrom the devotees had brought liquor conveys that the entire congregation was inebriated. Even though, PW-1, the purported eye witness to the occurrence deposed that he saw accused Moti Ram ::: Downloaded on - 15/04/2017 19:33:40 :::HCHP 19 deliver a fatal stab blow in the chest of Beli Ram. Nonetheless, the said fact appears to be wholly a prevarication in the face of the further fact .
existing in his examination-in-chief, wherein he has deposed that the deceased Beli Ram had, before falling on the floor, told him that he has been stabbed by Moti Ram. The aforesaid fact as deposed by PW-1 in his examination in chief has also been consistently deposed by PW-2 of and PW-3. The existence of the aforesaid fact in the examinations-in-
chief of PW-1, PW-2 and PW-3 impinging upon a revelation qua the rt genesis of the occurrence having been made by the deceased to them inasmuch as the deceased before falling on the floor having disclosed to them of Moti Ram having stabbed him, nails and clinches an inference of its existence, hence, portraying the fact of PW-1, PW-2 and PW-3 having not witnessed the occurrence, rather, theirs standing apprised by deceased Beli Ram of accused Moti Ram having delivered a stab blow on his chest at a time when on his receiving the purported knife blow on his chest, he fell on the floor. Consequently, it, appears that only the purported dying declaration qua the occurrence was made by Beli Ram to PW-1, PW-2 and PW-3. However, PW-1, PW-2 and PW-
3 have twisted and concocted the genesis of the occurrence so as to ingeniously project that they had witnessed the occurrence, whereas, they did not, for in case they did, there was no occasion for them to unravel in their respective testimonies of any disclosure qua the genesis ::: Downloaded on - 15/04/2017 19:33:40 :::HCHP 20 of the occurrence having been made to them by deceased Beli Ram, before he fell on the floor, after his having received the purported knife .
blow. Even the fact of the purported dying declaration as made by deceased Beli Ram to PW-1, PW-2 and PW-3 cannot be believed nor does it constitute any evidence of probative value, especially when the genesis of the prosecution story, is, not anvilled upon the purported of dying declaration made by the deceased Beli Ram to PW-1, PW-2 and PW-3 rather, is, anvilled upon the eye witness account qua the incident, rt manifested in the depositions of PW-1, PW-2 and PW-3, whose depositions are, however, incredible theirs carrying a tinge of unnaturalness.
23. PW-2 has also corroborated the testimony of PW-1 qua the incident. However, PW-2 has contradicted and improved upon the testimony of PW-1. Though, PW-1 has not attributed any role to co-
accused Man Singh in the incident, yet in his deposition in his examination-in-chief, PW-2, has deposed of both Moti Ram and Man Singh having dragged deceased Beli Ram out of the Room and brought him to the verandah and in the verandah accused Man Singh is alleged to have caught hold of Beli Ram and Moti Ram is deposed to have stabbed Beli Ram in his chest with knife which he was carrying in his left hand. The said improvement is dire and wide. It has immense ramifications, inasmuch, as it belies the veracity of the depositions of ::: Downloaded on - 15/04/2017 19:33:40 :::HCHP 21 both PW-1 and PW-2, inasmuch as with both omitting to depose in harmony and consistency with each other qua the inculpatory role in .
the occurrence of co-accused Man Singh, as such, they are to be construed to have not simultaneously witnessed the occurrence or rather a conclusion can also be formed that as a matter of fact, none witnessed the occurrence and of theirs rendering of a prevaricated and untruthful account qua the occurrence.
24. The above inference is accentuated by the factum of none rt in the congregation having interceded in the purported scuffle, which ensued interse the accused and the deceased, which lack of intervention on the purported scuffle by any member of the congregation renders open an inference of the incident having not taken place in the manner as projected by the prosecution. As a natural concomitant further fortification to the conclusion aforesaid is garnered by the factum of, though Raj Kumar having been deposed both by PW-
1 and PW-2 to have come to the site of occurrence, yet his omission to be joined as a witness, succors a conclusion of his omission standing goaded by the investigator, leaning towards rendering a concocted account qua the occurrence, through PW-1, PW-2 and PW-3, rather than projecting a truthful and impartisan version qua it. Even PW-3, though has deposed in tandem with PW-2 qua the occurrence, inasmuch, as alike/akin too, PW-2, he has attributed a role, to, co-
::: Downloaded on - 15/04/2017 19:33:40 :::HCHP 22accused Man Singh of the latter having held deceased Beli Ram for facilitating accused Moti Ram to deliver the fatal stab blow with knife .
Ext.P-7 on his chest. Consequently, with his rendering a version in tandem with PW-2 and in contradiction and contra distinction to PW-1, his, alike testimony to PW-2, hence, being ingrained with inter se and intra se contradictions qua the occurrence with the testimony of PW-1, of too, renders his testimony to be unebelievable. Moreover, though both PW-1 and PW-2 depose that at the apposite and relevant time, they rt had witnessed accused Moti Ram to be holding and wielding a knife in his left hand with which he delivered a blow on the chest of Beli Ram.
However, in the narration qua the incident preceding to the fact as unfolded by them in the latter part of their respective examinations-in-
chief, of theirs having witnessed accused Moti Ram to be holding or wielding a knife with which he delivered a stab blow on the chest of the deceased, there, is no narration or articulation by both PW-1 and PW-2, of, theirs having noticed accused Moti Ram holding or wielding a knife, hence the abrupt communication by them in the latter part of their examinations-in-chief, of theirs having witnessed accused Moti Ram to be wielding or holding a knife with which he purportedly delivered a stab blow on the chest of the deceased Beli Ram, as such, appears to be an afterthought, as well, as an ingeniously engineered move on their part to connect accused Moti Ram and Man Singh in the ::: Downloaded on - 15/04/2017 19:33:40 :::HCHP 23 commission of the offence of murder of Beli Ram. Such ingenuity reeks of untruth and is to be discarded.
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25. Even, PW-3 in his entire examination-in-chief omitted to disclose the fact that in the entire train of events preceding the delivery of the purported knife blow by accused Moti Ram, on, the chest of the deceased Beli Ram, he had ever noticed accused Moti Ram to be of holding or wielding a knife, hence, when even in the scuffle inter se the accused and the deceased which occurred inside the room of Moti Ram, rt none of the witnesses, plain speakingly voice the fact of theirs having noticed accused Moti Ram to be holding or wielding a knife, hence, the sudden and abrupt disclosure by PW1, PW-2 and PW-3, of theirs having noticed or witnessed accused Moti Ram to be holding or wielding a knife with which he delivered the fatal stab blow on the chest of the deceased Beli Ram, is, a fact which tellingly denudes the prosecution version of its veracity, as also, renders the fact of PW-1, PW-2 and PW-
3 having witnessed the occurrence, to be bereft of any truth. In aftermath, the reliance placed upon the testimonies of PW-1, PW-2 and PW-3 by the learned trial Court was ill thought as also, in-sagacious.
26. An in-depth analysis of the depositions of the principal prosecution witnesses who are espoused by the prosecution to have witnessed the occurrence when underscores the factum of theirs respective testimonies qua the occurrence for the aforestated reasons ::: Downloaded on - 15/04/2017 19:33:40 :::HCHP 24 being ridden with a vice of improvements besides intra se contradictions, compels this Court to also conclude of their depositions, .
disclosing therein of accused Man Singh being at the relevant time in the company of Moti Ram when the latter purportedly stabbed deceased Beli Ram with a knife, being bereft of creditworthiness. In sequel, the factum of this Court having while discarding the testimonies of of the aforesaid purported eyewitnesses acquitted principal accused Moti Ram for his purported incriminatory act of his stabbing deceased rt Beli Ram on the latters chest with Knife Ext.P-7 which begot his demise gives immense strength to this Court to also dispel the presence of accused Moti Ram at the site of occurrence at the relevant time or this Court is impelled to also over rule his presence thereat in the company of principal accused Moti Ram.
27. For the foregoing reasons, the appeal is allowed and the judgment of the learned trial Court is set-aside qua accused Man Singh.
Accused Man Singh is acquitted of the offences charged. He be set at liberty forthwith, if not required in any other case. Fine amount, if any, deposited by the accused, be refunded to him. Records be sent back.
(Rajiv Sharma)
Judge
December 19, 2015. (Sureshwar Thakur)
(TM) Judge
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rt
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