High Court of H.P.

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

Cr. Appeal No. 195 of 2011

along with Cr. Appeal No. 356 of 2011

Judgment Reserved on 26

th

May, 2014

Date of Decision 6

th

June, 2014

________________________________________________________

Cr. Appeal No. 195 of 2011

Jaswant @ Rulda ….Appellant

Versus

State of Himachal Pradesh ….Respondent

Cr. Appeal No. 356 of 2011

State of Himachal Pradesh ….Appellant

Versus

Sadeek Khan and another ….Respondents

________________________________________________________

Coram

The Hon’ble Mr. Justice Sanjay Karol, J.

The Hon’ble Mr. Justice P.S. Rana, J.

Whether approved for reporting?

1

Yes.

__________________________________________________________

Cr. Appeal No. 195 of 2011

For the Appellant: Mr. G.D. Verma, Sr.Advocate with

Mr. B.C. Verma, Advocate.

For the Respondent: Mr. B.S. Parmar, Additional

Advocate General with Mr. Ashok

Chaudhary Additional Advocate

General.

Cr. Appeal No. 356 of 2011

For the Appellant: Mr. B.S. Parmar, Additional

Advocate General with Mr.Ashok

Chaudhary, Additional Advocate

General.

For the Respondents: None.

_____________________________________________________________

1

Whether Reporters of Local Papers may be allowed to see the judgment? Yes.

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P.S. Rana Judge

.

Judgment:

Both these appeals are consolidated and

disposed of by the same judgm ent because both appeals have

filed against the same judgment and sentence passed by learned

trial Court.

Brief facts of the prosecution case

2. Brief facts of the case as alleged by the prosecution

are that on dated 13

th

July 2009 at about 9.45 AM Nishar had

gone to offer prayer of Nama j in village Bhood and accused

persons gave beatings to dece ased Nishar. It is alleged by

prosecution that thereafter deceased took to Malhotra Hospital

at Baddi in the vehicle of PW4 Balbir driven by PW5 Shamsher

Singh and thereafter deceased was referred to PGI Chandigarh

where he died on dated 17.7.2009. It is alleged by prosecution

that statement of PW1 Gafoor was recorded under Section 154

Cr.P.C. Ext.PW1/A and ruka Ext.PW10/D was also written and

thereafter FIR Ext.PW10/E was recorded. It is also alleged by

prosecution that deceased Nishar had requested the accused

persons to keep the chain of dog tight because pet dog used to

jump upon the children. It is further alleged by prosecution that

thereafter accused persons told the deceased that accused

persons would not chain their pet dog and in case the deceased

would insist then deceased would be killed by accused persons.

It is also alleged by prosecution that post mortem of deceased

was conducted and dead body was handed over vide Ext.PW2/C

to PW2 and thereafter deceased was cremated on dated 18

th

July, 2009. Photographs of dead body are Ext.PW1/B and

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Ext.PW1/C and police also prepared the inquest report. It is

further alleged by prosecution that accused persons hired

vehicle No. HP-12B-2228 and crossed the barrier from Nalagarh

side to Ropar side and copies of entries of Barrier are Ext.PW7/A

and Ext.PW7/B. It is also alleged by prosecution that as per the

medical certificates Ext.PW8/A and Ext.PW8/B the injuries

sustained by deceased could be sustained by beating. It is

further alleged by prosecution that deceased was unfit for giving

any statement and thereafter statement of Gafoor Mohammed

was recorded. After completion of investigation final report was

prepared and criminal case was filed under Sections 302, 341

and 323 read with Section 34 IPC.

3. Learned Sessions Judge framed the charge against

the accused persons on 23

rd

August, 2010. Accused persons did

not plead guilty and claimed trial.

4. Prosecution examined following seventeen oral

witnesses in all in support of its case:-

PW No. Name of the witness

1 Gafur.

2. Sadeek Mohammad.

3. Sher Mohammad.

4 Balbir Singh

5. Shamsher Singh.

6. Harvinder Singh

7. Karam Chand.

8 Dr. Anil Kumar.

9. Dr. S.P. Mandal.

10. HC Mohan Lal.

11. HC Avtar Singh

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12. Rattan Kumar

13. H.C. Satnam Singh

14. HC Harpal Singh

15. SI Dharam Singh

16. Inspector Dharam Chand

17. Dr. S.A. Siddiqui

4.1 The prosecution also pr oduced the following pieces

of documentary evidence in support of its case:-

Sr.No. Description of the document Exhibit

1 Statement of Gafoo r Ext.PW1/A

2. Rukka Ext.PW10/D

3. Endorsement on Rukka Ext.PW12/A

4. Copies of Inquest report Ext.PW2/A & B

5. Receipt. Ext.PW2/C

6. Copy of statement of Balbi r Ext.PW4/A

7. Copies of Time table Ext.PW7/A

8. Memo Ext.PW7/B

9. Copy of application Ext.PW8/A

10. Opinion Ext.PW8/B

11. Copy of application Ext.PW9/A

12. Copy of post mortem Ext.PW9/J

13. Receipt Ext.PW9/ K

14. Information Ext.PW9/L

15. Copy of diary entry No. 46-A Ext.PW10 /A

16. Copy of diary entry No. 5-A Ext.PW10 /B

17 Copy of diary entry No. 11(A) Ext.PW10/C

18 Copy of FIR Ext.PW10/E

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19 Certificate Ext.PW10/F

20 Spot Map Ext.PW13/A

21 Copy of application Ext.PW13/B

22 Opinion Ext.PW17/A

23 Copy of statement of Gafoor Ext.PW13/C

24 Copy of application Ext.PW14/A

25 Copy of statement of Harvinde r Ext.PW15/A

26 Copy of statement of Shamshe r Ext.PW15/B

27 Copy of medical legal record Book Ext.PW17/B

28 Certified copy of judgment Ext.DX

29 Copy of statement of Sadeek Ext.D2

30 Copy of statement of Sher Mohd. Ext.D3

31 Photographs Ext.PW1/B & C,

Ext.PW9/B to H

5. Statements of accused persons under Section 313 of

the Code of Criminal Procedure 1973 were recorded and accused

persons did not lead any oral evidence in defence.

6. Learned trial Court convicted co-accused Jaswant @

Rulda under Section 302 IPC and acquitted him qua offences

punishable under Sections 341 and 323 read with Section 34 IPC.

Learned trial Court also acquitted co-accused Sadeek Khan and

Faujia wife of Sadeek Khan. Learned trial Court heard the

convicted upon quantum of sentence and sentenced him to

undergo rigorous imprisonment for life for offence punishable

under Section 302 IPC and also im posed fine to the tune of

`10,000/- (Rupees ten thousand only). Learned trial Court further

directed that in default of payment of fine convicted shall further

undergo to rigorous imprisonment for six months.

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Grounds of appeal in Criminal Appeal No. 195 of 2011

7. Feeling aggrieved against the judgment passed by

learned trial Court, convicted Jaswant Singh @ Rulda filed

criminal appeal No. 195 of 2011 on the following memorandum

of grounds of appeal. It is pleaded that learned trial Court did not

properly appreciate oral as well as documentary evidence on

record and it is pleaded that case is not proved against the

appellant. It is pleaded that PW1 Gafoor deposed that all accused

persons were beating deceased Nashir Mohammad when they

reached the spot. It is pleaded that PW1 Gafoor had deposed

that when they reached the spot the accused persons fled away.

It is pleaded that PW1 Gafoor has stated that he along with his

three sons and Sarvshri Chinda son of Nathu and Balbir were

present at the spot and they have witnessed the incident. It is

pleaded that there was no enmi ty between the deceased and

accused persons. It is pleaded that Sadeek Khan had brought the

dog and deceased had some altercation two days prior to the

incident relating to dog to the effect that dog should be chained.

It is pleaded that PW4 Balbir has stated that there were 10-12

persons at the spot but no person from the village has been

examined by the prosecution. It is pleaded that none of the

prosecution witnesses supported the prosecution case as alleged

by the prosecution and it is further pleaded that findings of

learned trial Court are based upon conjectures and surmises. It is

pleaded that learned trial Court has not properly discussed the

oral evidence adduced by prosecut ion. It is pleaded that no

independent witness has been associated in the investigation of

present case. It is further pleaded that appellant did not commit

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any offence and the appellant is innocent. It is also pleaded that

in alternative sentence passed by learned trial Court is excessive

in nature. It is pleaded that essential ingredients of Section 302

IPC are not proved on record in present case. It is pleaded that

cause of death of deceased is also not proved on record. It is

pleaded that it is not proved on record that which of the accused

inflicted injuries upon which part of the body of deceased. Prayer

for acceptance of appeal sought.

Ground of appeal in Criminal Appeal No. 356 of 2011

8. It is pleaded that lear ned trial Court has not properly

appreciated the prosecution ev idence adduced against co-

accused Sadeek Khan and co-accu sed Faujia and it is further

pleaded that impugned judgment qua co-accused Sadeek Khan

and co-accused Faujia is based upon conjectures and surmises. It

is pleaded that acquittal of co-accused Sadeek Khan and co-

accused Faujia is contrary to law and contrary to proved facts. It

is pleaded that as per testimony of PW1 Gafoor it is proved on

record that all accused persons namely Jaswant, Sadeek Khan

and Faujia were beating the deceased. It is pleaded that even as

per testimony of PW2 Sad eek Mohammad and PW3 Sher

Mohammad who reached at the spot immediately after the

incident it is proved in positive manner that three accused

persons fled away from the spot when they noticed the family

members of deceased approaching to the place of incident. It is

pleaded that conduct of all accused persons is relevant under

Section 8 of the Indian Evidence Act. It is pleaded that learned

trial Court has committed illegality in acquitting co-accused

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Sadeek Khan and co-accused Fauj ia. Prayer for acceptance of

appeal sought.

9. We have learned counsel appearing on behalf of the

parties at length and also perused the entire record carefully.

10. Questions that arise for determination before us in

these appeals are whether learned trial Court on the basis of

material on record was justified in convicting appellant Jaswant

Singh @ Rulda and whether as pe r material placed on record

learned trial Court was justified in acquitting co-accused Sadeek

Khan and co-accused Faujia, wife of co-accused Sadeek Khan.

Oral Evidence produced by prosecution

11. PW1 Gafur has stated that deceased Nisar was his

son. He has stated that deceas ed was having transportation

business. He has stated that on dated 13

th

July 2009 at about

9.45 PM his son Nisar had gone to Masque for offering prayers of

‘Namaj’ in his village. He has stated that he was sitting on the

cot in court yard of his house. He has stated that he heard

noises coming from the side of house. He has stated that after

hearing the noise his sons Sher Mohammad, Chinda and Balvir

rushed to the spot. He has stated that all the accused persons

present in the court were beating his son Nishar Mohammad and

Nishar had fallen down upon th e ground. He has stated that

Nishar Mohammad was lying unc onscious and was having

injuries on head near ear and on the left elbow. He has stated

that blood was oozing out from deceased Nishar Mohammad. He

has stated that when they reached at the place of occurrence all

the accused persons fled away from the spot to their houses. He

has stated that he along with his three sons and other persons

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namely Chinda son of Nathu and Balvir reached at the spot. He

has stated that all above stated persons have witnessed the

occurrence. He has further stated that deceased Nishar

Mohammad was taken to Malhotra Hospital at Baddi in the

vehicle of Sh Balbir and thereafter deceased Nishar Mohammad

was referred to PGI Chandigarh for medical treatment. He has

stated that deceased Nishar Mohammad remained in PGI

Chandigarh up to 17

th

July 2009 and succumbed to his injuries.

He has stated that police came at the spot on 15

th

July 2009 and

his statement Ext PW1/A under Section 154 Cr.P.C. recorded by

the police. He has stated that he signed at point ‘A’. He has

stated that post mortem of de ad body was conducted in PGI

Chandigarh and thereafter dead body was handed over to him.

He has stated that dead body was cremated on dated 18

th

July,

2009. He has stated that Ext PW1/B and Ext.PW1/C are

photographs of dead body of his son deceased Nishar

Mohammad. He has stated that there was no previous enmity

between accused and his son Nishar Mohammad or other family

members. He has stated that Sadeek had brought a dog. He has

stated that his deceased son Nishar Mohammad two days prior

to the incident had requested the Sadeek to keep his dog in

chain. He has stated that some altercation took place between

accused and his deceased son Nishar Mohammad. He has stated

that said dog used to bark upon the children. He has stated that

accused persons told Nishar Mohammad that they would not

chain their pet dog and in case deceased Nishar Mohammad

would insist the same they wo uld kill away deceased Nishar

Mohammad. In cross examination he denied suggestion that he

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told to the Investigating Agency that he was not aware who had

given beatings to deceased Nishar Mohammad. He denied

suggestion that false story was concocted after due deliberation.

He has stated that co-accused Sadeek and Faujia were living in a

separate home. He has also denied suggestion that accused

persons have been falsely implicated in the present case due to

suspicion on the basis of altercation which took place relating to

a pet dog. He has admitted that one truck of deceased Nishar

Mohammad was stolen at Delhi prior to the incident. He denied

suggestion that driver and conductor were terminated. He has

stated that since his vehicle was stolen driver and conductor of

the vehicle left the job.

11.1 PW2 Sadeek Mohammad ha s stated that deceased

Nishar Mohammad was his elder br other. He has stated that co-

accused Sadeek had brought dog and 2/3 days prior to incident

deceased Nishar Mohammad had requested co-accused Sadeek

to chain his dog as the dog was barking upon the children. He

has stated that on dated 13

th

July, 2009 at about 9.45 PM he was

present in his house and his father was sitting on a cot in the

court yard. He has stated that he heard noises and alarm and

thereafter they rushed to the spot. He has stated that deceased

Nishar Mohammad was lying unconscio us in the street in front of

the house of Balvir. He has stated that when accused persons

saw the family members of the deceased at the spot of the

incident they fled away to their houses. He has stated that

deceased Nishar Mohammad was injured and blood was oozing

out from the injuries sustained by him. He has stated that

deceased was taken to hospital and thereafter he was referred to

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PGI Chandigarh and he also accompanied the deceased Nishar

Mohammad. He has stated that police prepared the inquest

report in duplicate which is Ext PW2/A and Ext PW2/B which

bears his signature and the signature of witness Sher

Mohammad at point ‘B’. In cross examination he has stated that

accused was bleeding profusely when they reached at the spot.

He denied suggestion that entire villagers were gathered at the

spot after hearing the noise. Se lf stated that only family

members of deceased Nishar Mohammad were present at the

spot. He denied suggestion that distance between the place of

incident and his house is ab out 125 metres. He denied

suggestion that accused persons were falsely implicated in the

present case.

11.2 PW3 Sher Mohammad has stated that deceased

Nishar Mohammad was his elder brot her. He has stated that on

dated 13

th

July, 2009 at about 9.45 PM he was present in his

house and his father was sitting on a cot in the courtyard of the

house. He has stated that on hearing noise they rushed to the

spot where deceased Nishar Mohammad was lying unconscious

near the house of Balvir and was bleeding profusely. He has

stated that they noticed that all the accused persons present in

the Court were fleeing from the spot to their houses. He has

stated that the injured was taken to Malhotra Hospital Baddi in

the vehicle of Balvir and thereafter deceased Nishar Mohammad

was referred to PGI Chandigarh. He has stated that deceased

Nishar Mohammad remained admitted in PGI Chandigarh up to

17

th

July 2009 when he succumbed to his injuries. He has stated

that police prepared inquest report Ext PW2/A and Ext PW2/B

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which bears his signature. He has stated that post mortem of

deceased Nishar Mohammad was conducted in PGI Chandigarh

and dead body was handed over fo r burial. He has stated that

accused persons had brought a pet dog and the dog used to run

after the children and passers-by to bite them. He has stated

that deceased Nishar Mohammad had requested the accused

persons to chain the pet dog but the accused persons have

refused to chain the pet dog. In cross examination he denied

suggestion that deceased Nishar Mohammad was picked up and

kept in the courtyard of co-accused Sadeek first and thereafter

taken to Malhotra Hospital. He denied suggestion that there are

many houses adjoining to the house of deceased Nishar

Mohammad. He denied suggestion that entire villagers were

gathered at the spot along with accused persons. He has stated

that only 4/5 persons were gathered at the spot of incident. He

has stated that his statement was recorded by the police on 17

th

July, 2009. He denied suggestion that they had not disclosed the

name of accused persons to th e police officials. He denied

suggestion that they had shown ignorance about the assailants.

He denied suggestion that a false story was concocted due to

suspicious. He denied suggestion that accused was conscious at

PGI Chandigarh.

11.3 PW4 Balbir Singh has stated that he is working as

Clerk in Jogindra Central Co-operative Bank at Baddi. He has

stated that deceased Nishar Mohammad was known to him. He

has stated that on dated 13

th

July, 2009 at about 9.45 PM he was

present at his house. He has stated that when he went to lock

the main gate of his house he noticed Nishar Mohammad lying

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unconscious in the street and was bleeding profusely. He has

stated that he raised alarm and thereafter father and brothers of

Nishar Mohammad along with ot her people from the village

gathered at the spot. He has stated that he called his son to

bring vehicle and thereafter they took Nishar Mohammad to

Malhotra hospital Baddi. He has stated that thereafter Nishar

Mohammad was referred to PGI Chandigarh. He has stated that

Nishar Mohammad was admitted in PGI Chandigarh. He has

stated that Nishar Mohammad died on 17

th

July 2009 at PGI

Chandigarh. He has stated that all the three accused persons

were present along with residents of the village at the spot. The

witness was declared hostile. In cross examination he has denied

suggestion that Nishar Mohammad came to his house at

approximately 9.45 PM on dated 13

th

July, 2009. He denied

suggestion that deceased Nishar Mohammad came to his house

since he had to go for urgent work. He has stated that he does

not know that co-accused Jaswant @ Rulda was keeping watch

on deceased Nishar Mohammad. He denied suggestion that co-

accused Jaswant @ Rulda came to his house again at 9.45 PM.

He denied suggestion that accused persons present in the Court

were standing at the spot where Nishar Mohammad was lying

unconscious. He denied suggestion that accused persons were

giving beatings to deceased Nishar Mohammad. He denied

suggestion that accused persons fled away from the place of

incident when family members of deceased Nishar Mohammad

came at the spot. He denied suggestion that Nishar Mohammad

died due to beatings given by accused persons. He denied

suggestion that he deposed fals ely in connivance with the

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accused persons. He has stated that he along with his son was

accompanying deceased Nish ar Mohammad and his family

members to the hospital and thereafter to PGI Chandigarh. He

has stated that police came in Malhotra hospital and inquired

about the incident. He has stated that he told the police that

deceased Nishar Mohammad was found lying unconscious. He

has further stated that the age of the dog at the relevant time

was 2/3 months.

11.4 PW5 Shamsher Singh has stated that he is truck

driver by profession. He has stated that deceased Nishar

Mohammad was known to him. He has stated that on dated 13

th

July, 2009 at about 9.30 PM after parking his truck he reached at

home and took his dinner and went to his room to watch TV. He

has stated that after 10/15 minutes he was called by his father

PW4 Balbir Singh that Nishar Mohammad was injured and he was

shifted to the hospital in the vehicle. He has stated that he took

out Maruti car and Nishar Mohammad was taken to Malhotra

hospital Baddi and thereafter he took injured to PGI Chandigarh.

He has stated that he remained in PGI Chandigarh till 17

th

July

2009 when deceased Nishar Mohamm ad died. He has stated that

he does not know the reason of injury sustained by Nishar

Mohammad. The witness was declared hostile. In cross

examination he denied suggestion that Nishar Mohammad was

sitting with his father at the relevant time. He also denied

suggestion that co-accused Jaswant @ Rulda also came to his

house. He denied suggestion that co-accused Rulda on seeing

Nishar Mohammad who was sitting with his father immediately

went back without having an y conversation. He denied

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suggestion that after sometime Nishar Mohammad left their

house. He denied suggestion that when he came out to urinate

he had noticed Nishar Mohammad and co-accused Jaswant was

holding the arms of each other and were altercating with each

other. He denied suggestion that immediately thereafter co-

accused Jaswant came to their house and told that somebody

had given beatings to deceased Nishar Mohammad. He denied

suggestion that on seeing family members of deceased Nishar

Mohammad the accused persons ran away from the place of

incident. He denied suggestion that co-accused was having a pet

dog. He denied suggestion that pet dog was used to run after the

children. He denied suggestion that deceased Nishar Mohammad

requested the accused persons to chain the dog. He denied

suggestion that he does not know that some altercation took

place between deceased Nishar Mohammad and accused

persons. He denied suggestion that accused persons had

threatened Nishar Mohammad with dire consequence. He denied

suggestion that he was deposing falsely in connivance with

accused persons to save them from punishment. He has

admitted that all the family members of Nishar Mohammad and

his father told to the police that deceased Nishar Mohammad

was found lying unconscious and they were not aware who gave

beatings. He denied suggestion that Nishar Mohammad was

conscious at PGI Chandigarh. He has stated that deceased Nishar

Mohammad was not able to speak.

11.5 PW6 Harvinder Singh has stated that he is

agriculturist by profession. He has stated that he has a vehicle

bearing registration No. HP 12B-2228. He has further stated that

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vehicle is plied on contract basis in Sukan Factory. He has stated

that co-accused Jaswant alias Rulda present in Court is known to

him who is resident of his village. He has stated that his vehicle

was not hired by co-accused Jaswant alias Rulda. He has stated

that he did not take the accused to Punjab. The witness was

declared hostile. He denied suggestion that on dated 10

th

July

2009 at 10 PM co-accused Rulda @ Jaswant called him to hire

his vehicle. He denied suggestion that co-accused Rulda @

Jaswant told him that vehicle was required to drop his friends at

Punjab. He denied suggestion that he went to Bhud barrier at 11

PM. He denied suggestion that he took co-accused Rulda alias

Jaswant and his friends from Bhud barrier and dropped them at

Nawanshar. He denied suggestion that Chinda demanded

Rs.2000/- (Two thousand) from co-accused Rulda alias Jaswant.

He denied suggestion that co-accused Jaswant alias Rulda was

having only Rs.1600/- (Rupees One thousand six hundred only) in

his pocket and he had given Rs.600/- (Rupees six hundred only)

to Chinda and Rs.1000/- (Rupees one thousand only) to him as

fare of taxi. He denied suggestion that Chinda told to co-accused

Rulda alias Jaswant that by that time Nishar Mohammad might

be dead. He denied suggestion that thereafter co-accused Rulda

alias Jaswant directed Chinda to keep his mouth shut. He has

stated that his vehicle was not hired by accused Jaswant alias

Rulda. He has stated that his vehicle was hired by factory for

carrying staff.

11.6 PW7 Karam Chand has stated that w.e.f. 16.8.2009

to May 2010 he remained posted as Incharge of Police Barrier

Dharowala. He has stated that he had brought the record of

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entry of the vehicle maintained at the barrier. He has stated that

on dated 14

th

July, 2009 vehicle No. HP12 B-2228 crossed the

barrier from Nalagarh side. He has stated that vehicle was

approaching towards Roper site at about 11.23 PM. He has

stated that copy of the register Ext PW7/A is correct as per the

original record. In cross examination he has admitted that the

register was not signed by the Incharge of Police Barrier. He has

admitted that there is cutting in the alleged entry and the same

is not initialed. He has stated that there is no serial number in

the entry made on 14

th

July, 2009. He has stated that entry was

not signed by anyone. He denied suggestion that serial number

has been fictitiously prepared at the instance of Investigating

Officer Police Station Baddi.

11.7 PW8 Dr.Anil Kumar has stated that during July 2009

he remained posted as Medical Officer Malhotra Hospital Baddi.

Medical Officer has stated that on dated 13

th

July, 2009 at 10.30

PM one Nishar Mohammad son of Mohammad Gafur resident of

village Bhud was brought to the hospital in injured condition with

history of medical injuries. Medical Officer has stated that he

brought the original treatment record regarding treatment of the

injured and he has stated that injured sustained various injuries

i.e. (1) Lacerated wound on occipital region measuring 5x1 c.m.x

½ cm.m (2) Lacerated wound on temporal region left side

measuring 2x1x1/2 cm. 3. (3) Left ear was measuring with

grading 2 plus (4) Patient was not orientated to time and place

and was semi-conscious. Medical Officer has further stated that

X-ray of skull, chest and CT scan of head of deceased were

advised which shows multiple hemorrhage and fracture in the

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left side. Medical Officer has stated that deceased was referred

to PGI Chandigarh after surgical operation. Medical Officer has

stated that treatment record Ext PW8/A was signed by him which

is correct as per original record. Medical Officer has stated that

patient was unfit to give any statement. Medical Officer has

stated that injuries upon body of deceased were possible by fall

on hard surface on the same side.

11.8 PW9 Dr.S.P.Mandal has stat ed that he was posted as

Assistant Professor in Departme nt of Forensic Medicine PGI

Chandigarh. Medical Officer has stated that on dated 18

th

July,

2009 at 10 AM he conducted post mortem of deceased Nishar

Mohammad. Medical Officer has stated that dead body was

brought by SI Dharam Singh vide request letter Ext.PW9/A along

with inquest paper in duplicate Ext.PW2/A and Ext PW2/B which

were signed by him. Medical Officer has stated that deceased

Nishar Mohammad was brought to emergency ward at PGI

Chandigarh on 14

th

July, 2009 at 1.55 AM and he died on 17

th

July

2009 at 1 PM. Medical Officer has further stated that the dead

body was moderality built. Medical Officer has stated that rigor

mortis present all over the body. Medical Officer has stated that

blood stain found in left ear. Medical Officer has stated that there

was horizontal stitched lacerated wound 4.5 x 0.8 c.m. and x

bone deep was present on left parietal region of the scalp started

13 c.m. above the lateral end of left eye brown and 7 c.m. medial

from left ear pinna. The margins were irregular and have brown

scabbed. Medical Officer has stated that horizontal stitched

lacerated bone 3.2 x 0.5 c.m. muscle deep present on left

parieto-occipital region of the scalp started 5 c.m. above upper

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portion of ear pinna. The marg ins were irregular and have

brownish scabbed. Medical Offi cer has stated that stitched

lacerated bone 1.5 x 0.9 c.m. into muscle deep present on left

mastorid process of the skull. Medical Officer has stated that

brown scabbed abrasion 2.8. x 1.2 c.m. present on left posterior

auxiliary line 5.5 cm below the axilla. Medical Officer has further

stated that brown scabbed abrasion 2x 1.c.m. was present on

left side forehead 2.5 cm lateral end of left eye brown on internal

examination. Medical Officer has further stated that

subaponeurotic haematoma thin layer was present on left

frontal, parietal, temporal region of the scalp and fissured

fracture 15 cm of left frontal, parietal and left temporal bones

started at lateral end of left eye orbit and above and medial.

Medical Officer has stated that the left medial and posterior

cranial fossa was fractured and subdural thin layer was present

all over the brain. Medical Officer has stated that contusion and

superficial laceration 3.5 x 3 cm present of inferior outer surface

of left temporal lobe of brain and brain was congested and

edematous. Medical Officer has further stated that both lungs

congested and consolidated at places and stomach contain about

20 cc dark colour fluid and other internal organs were congested

except mucous membrane of stomach small intestine and large

intestine suprarenal. Medical Officer has stated that the cause of

death was odeema of brain due to cranium and cerebral

damage. Medical Officer has stated that injuries were anti-

mortem and could be caused by blunt weapon. Medical Officer

has stated that probable duration of injury and death was about

3/4 days and between death and post mortem 21 hours. Medical

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Officer has stated that he also took photographs which are Ext

PW1/B to Ext PW1/C and Ext PW 9/B to Ext PW9/H. Medical

officer has stated that he issued post mortem report. Medical

Officer has stated that injuries could be caused by beatings. In

cross examination Medical Officer denied suggestion that after

stitching of the wound it was difficult to opine about the nature

of injuries whether it was caused by sharp or blunt weapon. Self

stated that stitched were removed at the time of post mortem

examination. Medical Officer has stated that post mortem was

done after removing stitches and after opening the skull. Medical

Officer denied suggestion that he did not conduct the post

mortem of deceased Nishar Mo hammad. Medical Officer denied

suggestion that he has given the opinion only as per the instance

of the police officials. Medical Officer denied suggestion that the

photographs were not obtained in his presence by him. Medical

Officer denied suggestion that photographs were not developed

in his presence.

11.9 PW10 HC Mohan Lal has stated that during the year

2009 he remained posted at Police Station Baddi. He has stated

that on dated 13.7.2009 at abou t 11.25 PM information was

received in the Police Station which was recorded in the

computer by him vide entry No. 46. He has stated that copy

thereof is Ext PW10/A. He has stated that HC Avtar Singh after

visiting Malhotra Hospital and verifying the facts returned back

to Police Station and report No.5A was entered at 1.30 AM on

dated 14.7.2009. He has stated th at copy of such report is

Ext.PW10/B. He has stated that on dated 14

th

July, 2009

information was received at Police Station from Police Post PGI

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Chandigarh that injured Nishar Mohammad was admitted in PGI

Chandigarh and in this regard entry No.11 was entered in the

computer which is Ext PW10/C. He has stated that thereafter

statement of Gafur Ext PW1/A along with rukka Ext PW10/D was

received in Police Station through Constable Avtar Singh and FIR

Ext.PW10/E was recorded. In cross examination he denied

suggestion that FIR was registered on 15

th

July 2009 in

connivance with opposite party.

11.10 PW11 HC Avtar Singh has stated that for the last 1 ½

years he was posted at Baddi as Investigating Officer. He has

stated that on receipt of information vide rapat Ext PW10/A he

visited Malhotra Hospital Baddi where Nishar Mohammad was

under treatment. He has stated that Nishar Mohammad had

sustained injuries. He has stated that he moved Ext PW8/A to

Medical Officer. He has stated that Medical Officer had opined

that deceased Nishar Mohammad was not fit to give any

statement. He has stated that thereafter injured was referred to

PGI Chandigarh. He has stated that on his return rapat Ext

PW10/B was entered in the comput er. In cross examination he

denied suggestion that he had come to brief and tutor the

witnesses.

11.11 PW12 Rattan Kumar has st ated that during the year

2009 he remained posted as Station House Officer, Police Station

Baddi. He has stated that on dated 14

th

July, 2009 at about 5.30

PM statement of Gafur Ext PW10/A and rukka Ext PW10/D were

written and signed by HC Avtar Singh on the basis of which FIR

Ext PW10/E was recorded. In cross examination he denied

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suggestion that rukka was prepared on 15

th

July 2009 and the FIR

was registered on the same day.

11.12 PW13 HC Satnam Singh has stated that since the

year 2007 he was posted at Police Station Baddi. He has stated

that on dated 14

th

July, 2009 present case file was handed over

to him by SI Ratan Kumar. He has stated that thereafter on 15

th

July 2009 he visited the place of occurrence where deceased

Nishar Mohammad was beaten and prepared spot map Ext

PW13/A. He has stated that marginal notes were prepared and

the same was signed by him. He has stated that thereafter he

handed over the case file to SI Dharam Singh for further

investigation. He has stated that he had also moved application

Ext PW13/D to SMO PGI Chandigarh and thereupon doctor opined

that injured was unfit for giving any statement. In cross

examination he has admitted that the house of deceased Nishar

Mohammad and his father Gafur are opposite to each other in a

street.

11.13 PW14 HC Harpal Singh ha s stated that for the last

three years he was posted as Investigating Officer Police Station

Baddi. He has stated that on dated 14

th

July 2009 on the receipt

of the information by rapat Ext PW10/A he visited PGI Chandigarh

where Nishar Mohammad was admitted. He has stated that he

moved application Ext PW14/A to the Station House Officer PGI

Chandigarh. He has stated that Medical Officer has opined that

the injured was unfit for giving any statement. He has stated that

thereafter Gafur Mohammad fa ther of deceased Nishar

Mohammad given statement Ext PW 1/A which he recorded as per

his version. He has stated that thereafter he prepared rukka Ext

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PW10/D and sent the same to Po lice Station through Constable

Avtar Singh. He has stated that FIR Ext.PW10/A was registered.

In cross examination he denied suggestion that Ext PW11/A was

written on 15

th

July 2009 after due deliberation with the

complainant party.

11.14 PW15 SI Dharam Singh has stated that on dated 17

th

July 2009 HC Satnam Singh handed ov er case file to him. He has

stated that deceased Nishar Mohammad was found dead at PGI

Chandigarh. He has stated that he prepared inquest report in

duplicate Ext PW4/A and Ext PW4/E which were signed by him.

He has stated that thereafter post mortem report of deceased

Nishar Mohammad was conduc ted. He has stated that

photographs of the dead body are Ext PW1/B & C and Ext PW9/B

to H. He has stated that on dated 18

th

July 2009 all the accused

persons were arrested. He has stated that he had visited Punjab

to apprehend the Chinda and his other two associates but they

were not traced out. He has stated that during the investigation

it was found that deceased Nishar Mohammad was beaten by all

the accused persons present in the Court which resulted into

death of deceased Nishar Moha mmad. In cross examination he

denied suggestion that as per investigation deceased was seen

lying unconscious by the villagers. He denied suggestion that in

connivance with the complainant party he falsely implicated the

accused persons. He denied su ggestion that statements of

Balbir, Shammer and Harvinder were not recorded as per their

versions. He denied suggestion that the statement of other

persons were recorded in connivance with the complainant party.

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11.15 PW16 Inspector Dharam Chand has stated that from

July 2009 to April 2010 he remained posted as Station House

Officer police Station Baddi. He has stated that on completion of

the investigation he prepared the final report and submitted the

same to the learned trial Court for trial. In cross examination he

denied suggestion that false case has been registered against

accused persons in connivance with the complainant party.

11.16 PW17 Dr. S Saddiqui has stated that from July 2009

to September 2009 he remained posted as SMO PGI Chandigarh.

Medical Officer has stated that on dated 16

th

July 2009 he

received application Ext PW13/B moved by Investigating Officer

and at that time injured Nishar Mohammad was unfit to give any

statement and his opinion is Ext PW17/A. On examination of

deceased Nishar Mohammad Medi cal Officer observed that the

alleged history of incident as disclosed was assault on dated 13

th

July 2009 at 10 PM in front of his home. Medical Officer has

further stated that there was history of loss of consciousness

vomiting and ear bleeding. Medical Officer has stated that on

examination, the deceased wa s found conscious but drowsy.

Medical Officer has further stated that scalp and face of the

deceased had left parieto-occipital 6 cm laceration, left ear

bleeding, left mastoid 3 cm laceration present, maxilla and

mandible clavicle were NAD. Medical officer has stated that

nature of injury was dangerous caused with blunt weapon and

the injuries were fresh. Medical Officer issued MLC Ext PW17/B

which was written and signed by him. Medical Officer has further

stated that injuries as mentioned in MLC Ext PW17/B could be

caused by way of beatings. Medical Officer has stated that when

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he examined deceased Nishar Mohammad both injuries were not

stitched. Medical Officer has stated that injuries sustained by

deceased Nishar Mohammad could be result of beatings by 2/3

persons. In cross examination Medical Officer denied suggestion

that he deposed at the instance of the police officials qua the

dangerous nature of the injuries. Medical Officer has stated that

the depth of the injuries was not mentioned. The accused

persons did not lead any evidence.

Findings in Criminal Appeal No. 195 titled Jaswant Singh @ Rulda vs.

State of H.P.

Factor No. 1 fatal to the prosecution case

12. Submission of learned Advocate appearing on behalf

of appellant Jaswant Singh @ Rulda that learned trial Court did

not properly appreciate oral as well as documentary evidence

placed on record is accepted for the reasons to be mentioned

hereinafter. It is the case of prosecution that on dated 13

th

July

2009 at about 9.40 PM in village Bhood Tehsil Baddi District

Solan the accused persons had beaten the deceased Nishar

Mohammad son of Gafoor who died on dated 17

th

July 2009 on

account of beatings given by accused persons. It is the case of

prosecution that beating was given to deceased Nishar

Mohammad son of Gafoor nearby the house of Balbir during the

night period at 9.45 PM. As per prosecution the eye witnesses of

the incident are PW1 Gafoor father of deceased, PW2 Sadeek

Mohammad brother of deceased, PW3 Sher Mohammad brother

of deceased and PW4 Balbir Singh independent witness. In

present case PW1 Gafoor fath er of deceased, PW2 Sadeek

Mohammad and PW3 Sher Mohammad brothers of the deceased

have supported the case of prosecution but independent witness

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namely PW4 Balbir Singh alleged eye witness of the incident did

not support the prosecution story as alleged by prosecution.

Presence of PW4 as eye witness of incident is admitted by PW1

Gafoor in his testimony recorded as PW1. PW1, PW2 and PW3 are

the interested witnesses being father and brothers of deceased

and PW4 Balbir Singh is the independent witness. It is the case of

prosecution that incident of beating to deceased took place

nearby the house of PW4 Balbir Singh. We have carefully

perused the testimony of PW4 Balbir Singh. PW4 Balbir Singh has

specifically stated that on dated 13

th

July, 2009 at about 9.45 PM

he was present in his house and when he went to lock his main

gate of the house he noticed that deceased Nishar Mohammad

was lying unconscious in the street and was bleeding. PW4 has

stated that he raised alarm and thereafter father and brothers of

Nishar Mohammad along with othe r people from the village came

at the spot. As per testimony of PW4 he was the first person who

reached at the place of incident where deceased was lying

unconscious. PW4 Balbir Singh did not state when he appeared in

the witness box that accused persons had given beatings to

deceased. He has stated in positive manner that accused and

their family members have also reached at the spot after hearing

the alarm. PWs 1 to 3 have stated that accused persons have

fled away from the place of incident when they saw PWs 1 to 4.

On the contrary PW4 Balbir Si ngh has stated that accused

persons did not flee from the place of incident but came at the

spot. Hence there is material contradiction between the

testimonies of PWs 1 to 3 and PW4 qua the fact that accused

persons fled away from the place of incident.

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Factor No. 2 fatal to the prosecution case

13 As per testimony of PW4 he was the first person who

came at the spot of incident and when he came at the place of

incident he saw deceased in injured condition and thereafter he

raised alarm and when he raised alarm thereafter PWs 1 to 3

came at the spot. On the contrary PWs 1 to 3 have stated in

positive manner that when they heard the noise then

simultaneously they came at the spot. Hence there is material

contradiction between the testimonies of PW4 and PWs 1 to 3

qua factum of arrival at the place of incident. This fact creates

doubt in the mind of Court in view of two views available in

present case.

Factor No. 3 fatal to the prosecution case

14. As per testimony of PWs 1 to 3, when they reached

at the spot the accused persons fled away from the place of

incident. On the contrary as per testimony of PW4 Balbir Singh,

he did not see accused persons running from the place of

incident rather they came at the spot along with other villagers

also. This fact creates doubt in the mind of Court in view of two

views available in present case.

Factor No. 4 fatal to the prosecution case

15. In present case pros ecution did not record any

disclosure statement of accused persons under Section 27 of the

Indian Evidence Act 1872. No re ason has been assigned by

prosecution as to why prosecution did not record the disclosure

statement of accused persons under Section 27 of the Indian

Evidence Act 1872 in present case in order to prove its case as

alleged by the prosecution.

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Factor No. 5 fatal to the prosecution case

16. Even PW1 Gafoor in hi s statement recorded under

Section 154 Cr.P.C. has admitted the presence of Balbir Singh at

the time of incident. Even in present case statement of deceased

could not be recorded because as per the opinion of Medical

Officer deceased was not in fit position to give his statement. It

was held in case reported in

(2005)9 SCC SC 765 (DB) titled Anjlus

Dungdung vs. State of Jharkhand

that suspicion however strong

cannot take place of proof. It was again held in case

AIR 1979 SC

1382

titled State (Delhi Administration) vs. Gulzarilal Tandon that

suspicion however grave cannot take place of proof. (also see

AIR 1984 SC 1622 titled Sharad Birdhichand Sarda vs. State of

Maharashtra

, See: AIR 1983 SC 906 titled Bhugdomal Gangaram and

others vs. the State of Gujarat

See: AIR 1985 SC 1224 titled State of

U.P. vs. Sukhbasi and others

. It was held in case reported in AIR

1967 SC 520 titled Charan Singh vs. The State of UP

that the Court

must guard against the danger of allowing conjecture or

suspicion to take place of legal proof.

(Also see AIR 1971 SC 1898

titled (1) Gian Mahtani and (2) Budhoo and others vs. State of

Maharashtra).

It was held in case reported in 1998(2) S.L.J. 1408

Shashi Pal and others vs. State of HP

that if two versions appear in

prosecution evidence then version beneficial to the accused,

should be adopted. Also see

1993(1) SLJ 405 titled State of H.P. vs.

Sudarshan Singh

, See 1995 (3) SLJ 1819 titled State of Himachal

Pradesh vs. Inder Jeet and others

, See 1995(4) SLJ 2728 titled State of

H.P. vs. Diwana and others

. It was held by Apex Court of India in

Criminal Appeal No. 1320 of 1999 decided on 12

th

April, 2005

titled state of U.P. vs. Gambhir Singh and others that if two views

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High Court of H.P. 29

are reasonably possible then one in favour of accused must be

preferred

. (Also see 2005(5) JT 553 titled State of U.P. vs. Gambhir

Singh and others)

Factor No. 6 fatal to the prosecution case

17. It is the case of prosec ution that incident took place

during the night period at about 9.45 PM and during that time

there was extremely dark. There is no evidence on record in

order to prove that light was available at the place of incident.

No reason has been assigned by prosecution as to how PWs 1 to

3 have seen the accused inflicting injuries upon the deceased

during the night period despite the non-availability of light. This

fact creates doubt in the mind of Court qua the testimonies of

PWs1 to 3 relating to inflicting of injuries.

Factor No.7 fatal to the prosecution case

18. In present case weapon of offence through which injuries were inflicted upon the deceased was not produced nor exhibited in Court by the prosecuting agency which is also fatal

to the prosecution. Weapon of attack was not recovered in

present case as per disclosure statement under Section 27 of the

Indian Evidence Act 1872.

Factor No. 8 fatal to the prosecution case

19. Even PW5 Shri Shamsher Singh did not support the

prosecution case to the effect that injuries were inflicted upon

the deceased in his presence an d to the effect that accused

persons hired his vehicle bearing No. HP-12B-2228 to drop them

in Punjab.

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Factor No. 9 fatal to the prosecution case

20. Even it is proved on record that FIR No. 112 dated

14

th

July, 2009 Ext.PW10/E was recorded as per information given

by Gafoor son of Ali Bakshi. We have carefully perused the

contents of FIR Ext.PW10/E placed on record. In FIR Ext.PW10/E

placed on record names of co-accused namely Sadeek Khan and

Faujia wife of Sadeek Khan did not mention. No reason has been

assigned as to why names of other co-accused namely Sadeek

Khan and Faujia did not mention by Gafoor when his statement

was recorded under Section 154 Cr.P.C. On the contrary it has

been specifically mentioned in FIR Ext.PW10/E that some other

two persons were involved in the commission of offence and

names of some other two persons did not disclose in FIR. This

fact creates doubt in the mind of Court qua the testimony of PW1

Gafoor.

Findings in Criminal Appeal No. 356 of 2011, titled State of H.P. vs.

Sadeek Khan

21. Submission of learned Additional Advocate General

appearing on behalf of the State-appellant that learned trial

Court has illegally acquitted co-accused Sadeek Khan and co-

accused Faujia, wife of Sadeek Khan in present case contrary to

proved facts placed on record is rejected being devoid of any

force for the reasons hereinafter mentioned. In present case it is

the case of prosecution that PW1 Gafoor PW2 Sadeek

Mohammad PW3 Sher Mohammad and PW4 Balbir Singh were

present when accused persons have committed the criminal

offence. In present case PW4 Balbir Singh independent eye

witness has stated in positive manner that he did not see

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accused persons inflicting injuries upon deceased. On the

contrary PW1 Gafoor PW2 Sad eek Mohammad and PW3 Sher

Mohammad have stated in positive manner that accused persons

were inflicting injuries on the deceased. There is material

contradiction between the testimonies of PWs1 to 3 who are

father and brothers of deceased and PW4 independent eye

witness. Since two views have emerged in present case we are of

the opinion that it is expedient in the ends of justice to take the

view favourable to the accused persons. We hold that

testimonies of PW1 Gafoor, PW2 Sadeek Mohammad and PW3

Sher Mohammd are not sufficient to convict the accused persons

in present case because PW1 Gafoor PW2 Sadeek Mohammad

and PW3 Sher Mohammad are not independent witnesses but are

interested witnesses being father and brothers of deceased and

we also hold that these witnesses are interested in conviction of

accused persons being father and brothers of deceased.

22. Another submission of learned Additional Advocate

General appearing on behalf of the State that in view of

testimonies of PWs1 to 3 accused persons fled away from the

place of incident and their conduct is relevant under Section 8 of

the Indian Evidence Act and on this ground appeal be accepted is

also rejected being devoid of any force for the reasons

hereinafter mentioned. Although PW1 Gafoor father of deceased,

PW2 Sadeek Mohammad and PW3 Sher Mohammad brothers of

deceased have stated that accused persons fled away from the

place of incident when villagers came at the spot but on the

contrary another independent eye witness PW4 Balbir Singh has

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stated in positive manner that accused persons namely Jaswant

@ Rulda, Sadeek Khan and Faujia did not flee from the place of

incident but came along with ot her villagers at the place of

incident. Hence in view of contradictory testimonies of PWs 1 to

3 and PW4 qua running away of accused persons from the spot it

is not expedient in the ends of justice to convict the accused

persons in view of material contradiction between the

testimonies of independent witness and interested witnesses in

present case. It is well settled principle of law that if two

reasonable conclusions are possible on the basis of the evidence

on record, the appellate Court should not disturb the finding of

acquittal recorded by the trial Court.

(See (2013)2 SCC 89 titled

Mookkiah and another vs. State

See 2011(11) SCC 666 titled State of

Rajasthan vs. Talevar

, See AIR 2012 SC (Supp) 78 titled Surendra vs.

State of Rajasthan

, See 2012(1) SCC 602 State of Rajasthan vs. Shera

Ram @ Vishnu Dutta.)

It is also well settled principle of law (i) That

Appellant Court should not ordinarily set aside a judgment of

acquittal in a case where two views are possible though the view

of the appellate Court may be mo re probable. (ii) That while

dealing with a judgment of a cquittal Appellant Court must

consider entire evidence on record so as to arrive at a finding as

to whether views of learned trial Court are perverse or otherwise

unsustainable. (iii) That Appellate Court is entitled to consider

whether in arriving at a finding of fact, learned trial Court failed

to take into considered any admissible fact and (iv) That learned

trial Court failed to take into consideration evidence brought on

record contrary to law.

(See AIR 1974 SC 2165 titled Balak Ram and

another vs. State of U.P., See (2002)3 SCC 57, titled Allarakha K.

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High Court of H.P. 33

Mansuri vs. State of Gujarat, See (2003)1 SCC 398 Raghunath vs. State

of Haryana, See AIR 2007 SC 3075 State of U.P. vs. Ram Veer Singh and

others, See AIR 2008 SC 2066 (2008) 11 SCC 186 S. Rama Krishna vs. S.

Rami Raddy (D) by his LRs. & others. Sambhaji Hindurao Deshmukh and

others vs. State of Maharashtra, (2009)10 SCC 206 titled Arulvelu and

another vs. State, (2009)16 SCC 98 Perla Somasekhara Reddy and

others vs. State of A.P. and (2010)2 SCC 445 titled Ram Singh @ Chhaju

vs. State of Himachal Pradesh.)

23. Keeping in view the above stated facts and case law

cited supra,

Criminal Appeal No. 195 of 2011, titled Jaswant Singh @

Rulda vs. State of H.P.

is accepted and conviction of appellant

Jaswant Singh @ Rulda passed by learned trial Court under

Section 302 IPC is set aside by way of giving benefit of doubt.

The convicted be released forthwith if not required in any other

case. Warrant of release be issued forthwith by the Additional

Registrar (Judicial).

Criminal Appeal No. 356 of 2011, titled State of

H.P. vs. Sadeek Khan and another

is dismissed. We hold that

acquittal of co-accused Sadeek Khan and co-accused Faujia wife

of Sadeek Khan by learned trial Court is in accordance with law

and we also hold that learned trial Court did not commit any

illegality by way of acquitting co-accused Sadeek Khan and co-

accused Faujia in present case. We further hold that two views

have emerged in present case and we adopt the view favourable

to the accused persons in view of rulings cited supra. Both

appeals are disposed of. Record of learned trial Court be

transmitted forthwith and pending miscellaneous application(s),

if any, also stands disposed of. Certified copy of judgment will be

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High Court of H.P. 34

placed in criminal file of Criminal Appeal No. 356 of 2011, titled

State of H.P. vs. Sadeek Khan and another.

(Sanjay Karol),

Judge

June 06, 2014 (P.S. Rana)

(ms/R). Judge

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