High Court of H.P.IN THE HIGH COURT OF HIMACHAL PRADESH, AT SHIMLA

Judgment reserved on:21

st

December 2015

Date of Judgment: 22

nd

December 2015

1. Cr. Appeal No. 14 of 2010

Kamal Dev @ Kamal Kumar son of Shri Devi Dass

…..Appellant.

Vs.

State of Himachal Pradesh …Respondent

.

For the Appellant: Mr.N.K. Thakur, Sr. Advocate with

Mr.Surender K. Sharma, Advocate

For the Respondent: Mr.V.S.Chauhan, Additional Advocates

General.

1A. Cr. Appeal No. 422 of 2011

Kamal Dev @ Kamal Kumar son of Shri Devi Dass

…..Appellant.

Vs.

State of Himachal Pradesh …Respondent

.

For the Appellant: Mr. Imran Khan, Legal Aid counsel.

For the Respondent: Mr.V.S.Chauhan Additional Advocate

General.

2. Cr. Appeal No. 34 of 2010

Kapil Dev son of Shri Sat Pal …..Appellant.

Vs.

State of Himachal Pradesh …Respondent

.

For the Appellant: Mr. Anup Chitkara, Advocate.

For the Respondent: Mr. V.S.Chauhan Additional Advocate

General.

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3. Cr. Appeal No. 142 of 2010

Roshan Lal son of Shri Hajura Singh

…..Appellant.

Vs.

State of Himachal Pradesh …Respondent

.

For the Appellant: Mr. Adarsh Sharma vice Advocate.

For the Respondent: Mr.V.S. Chauhan Additional Advocate

General.

Coram:

Hon’ble Mr. Justice Sanjay Karol, Judge.

Hon’ble Mr.Justice P.S.Rana, Judge

.

Whether approved for reporting1?. Yes.

P.S.Rana, Judge

JUDGMENT: Kamal Dev son of Shri Devi Dass, Kapil Dev

son of Shri Sat Pal, Roshan Lal son of Shri Hajura Singh were

accused in Sessions trial No. 5 of 2009 titled State of H.P. vs.

Kamal Dev and others. All accused persons have filed the

present appeals. Accused Kamal Dev has filed two appeals i.e.

Criminal Appeal No. 14 of 2010 and Criminal Appeal No. 422

of 2011, co-accused Kapil Dev filed Criminal Appeal No. 34 of

2010 and co-accused Roshan Lal filed Criminal Appeal No. 142

of 2010. All appeals have been filed against same judgment of

Whether reporters of the Local papers are allowed to see the judgment?. Yes.

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conviction and sentence passed by learned trial Court. All

appeals consolidated and disposed of by same judgment in

order to avoid repetition of oral and documentary evidence

and in order to avoid conflicting judgments.

BRIEF FACTS OF THE PROSECUTION CASE:

2. Brief facts of the case as alleged by prosecution

are that PW1 Krishan Dev father of deceased had retired from

police department as head constable in the year 2003. It is

alleged by prosecution that PW1 Krishan Dev had purchased

one Tavera vehicle for private use of his deceased son. It is

alleged by prosecution that on 10.10.2008 in the morning

deceased Rajnish @ Bhishu had gone in that vehicle to village

Mawa Kaholan towards Daulatpur. It is alleged by prosecution

that deceased Rajnish @ Bhishu did not return to his house

during day time and Rajnish @ Bhishu had informed his

mother on mobile phone at about 8/8.30 PM on 10.10.2008

that he would come to his residential house after sometime. It

is alleged by prosecution that thereafter Rajnish @ Bhishu did

not return to his house till 10 PM and thereafter wife of PW1

Krishan Dev tried to contact his son on his mobile phone at 10

PM but deceased could not be contacted. It is alleged by

prosecution that deceased Rajnish @ Bhishu was in

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possession of two mobile phones in active use. One mobile

phone was of Nokia and other mobile phone was of Samsung.

It is alleged by prosecution that on 10.10.2008 PW4 Rajesh @

Billu had left his work site at Amb for Hoshiarpur and PW4

took the vehicle of company to Hoshiarpur. It is alleged by

prosecution that PW4 was posted as driver in Sonalika factory

which manufatured the tractors at Amb. It is alleged by

prosecution that after dropping the vehicle of Company at

Hoshiarpur PW4 was on his way to his village at Mawa Kaholan

and when PW4 reached at Mehatpur in bus then no bus

service was available from Mehatpur towards Mawa Kaholan.

It is alleged by prosecution that PW4 had reached area of

Chalet at 8 PM on 10.10.2008. It is alleged by prosecution that

PW4 noticed Tavera vehicle of deceased Rajnish @ Bhishu at

Chalet and contacted Rajnish @ Bhishu. It is alleged by

prosecution that deceased Rajnish @ Bhishu had informed

PW4 that he would leave for his house at village Mawa

Kaholan after sometime. It is alleged by prosecution that PW4

stayed at Chalet with deceased Rajnish @ Bhishu. It is further

alleged by prosecution that accused persons were consuming

liquor in liquor vend shop at Chalet and deceased Rajnish @

Bhishu was also present in liquor vend shop. It is alleged by

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prosecution that at that time PW4 was also along with

deceased Rajnish @ Bhishu. It is alleged by prosecution that

accused persons picked up quarrel with PW4 and thereafter

deceased Rajnish @ Bhishu intervened and saved PW4 from

accused persons. It is alleged by prosecution that thereafter

deceased Rajnish @ Bhishu asked PW4 to return to his house

in his Tavera vehicle and deceased Rajnish @ Bhishu had

supplied the key of Tavera vehicle to PW4. It is alleged by

prosecution that PW4 left the liquor shop and started the

Tavera vehicle of deceased and took the vehicle to petrol

pump for fuel purpose. It is alleged by prosecution that

accused persons were also in possession of another tractor of

blue colour and took another tractor to petrol pump. It is

alleged by prosecution that when PW4 noticed the tractor of

accused persons in front of his Tavera vehicle PW4

immediately reversed the Tavera vehicle and came towards

Mawa Kaholan despite the fact that PW4 was stopped by

accused persons. It is alleged by prosecution that thereafter

accused persons picked up quarrel with deceased Rajnish @

Bhishu. It is alleged by prosecution that accused persons took

their tractor from petrol pump towards house of PW23 Ranjit

Singh situated in locality of Chalet. It is alleged by prosecution

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that co-accused Roshan Lal was in possession of scythe (Sharp

edged weapon) which was kept in bag and PW4 and deceased

Rajnish @ Bhishu had seen the scythe (Sharp edged weapon)

in liquor shop. It is alleged by prosecution that PW7 Ramesh

was on his way from Bhabmout to village Mawa Kaholan on his

scooter and he also saw the accused persons along with

tractor in the area of Chalet. It is alleged by prosecution that

PW7 has recognized the accused persons because PW7 and

accused persons used to reside in same village. It is alleged

by prosecution that next day dead body of deceased Rajnish

@ Bhishu was recovered from place where PW7 had seen

accused persons along with tractor. It is alleged by

prosecution that PW4 also reported the matter of quarrel to

Pardhan of Gram Panchayat. It is alleged by prosecution that

there were cut marks upon throat of deceased and there were

also cut marks on hands of deceased. It is alleged by

prosecution that after registration of FIR Ext.PW16/B

Investigating Agency reached at the spot at Chalet and

photographs obtained. It is also alleged by prosecution that

Investigating Agency collected blood stained earth Ext.P3 and

sealed the same with seal ‘M’. It is alleged by prosecution that

marks of tyre of tractor were also found near the dead body. It

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is also alleged by prosecution that two mobiles i.e. one of

Nokia and another of Samsung were also recovered vide

recovery memo Ext.PW2/E. It is alleged by prosecution that

post mortem of dead body of deceased was conducted and as

per post mortem report Ext.PW15/A the death of deceased

was caused due to multiple ante mortem injuries upon neck

leading to shock and death. As per post mortem report

probable duration between the injury and death was ten

mintues and probable duration between the death and post

mortem was 24 hours. It is alleged by prosecution that viscera

of deceased was preserved for chemical examination and was

sealed with seal of medical officer. It is alleged by prosecution

that clothes Ext.P14 to Ext.P16 and shoes Ext.P17 were also

sealed with seal of medical officer for chemical analysis. It is

further alleged by prosecution that disclosure statements of

accused persons recorded. It is alleged by prosecution that

scythe (Sharp edged weapon) was also recovered as per

disclosure statement and scythe was sealed with seal

impression ‘B’. It is alleged by prosecution that photographs of

tractor also obtained and placed on record and case property

deposited in malkhana register and thereafter sent to

chemical examiner. It is alleged by prosecution that PW23

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Ranjit Singh had seen that accused persons were beating the

deceased near his house on 10.10.2008 at about 9 PM. It is

alleged by prosecution that site plan also prepared by PW22

and he had also prepared sketches Ext.PW22/B and

Ext.PW22/G.

3. Learned Sessions Judge Una framed charge under

Section 302 read with Section 34 IPC and also framed charge

against accused persons under Section 201 IPC read with

Section 34 IPC. Accused persons did not plead guilty and

claimed trial. Learned Sessions Judge Una also framed

amended charge against the accused persons on 25.5.2009.

4. Prosecution examined 23 oral witnesses and also

tendered documentary evidence. Accused persons did not

lead any defence evidence. Learned Sessions Judge Una

convicted all accused persons under Sections 302 and 201

read with Section 34 IPC. Learned Sessions Judge Una

convicted all accused persons to undergo rigorous

imprisonment for life and also imposed fine to the tune of

`5000/- (Rupees five thousand only) each under Section 302

IPC. Learned Sessions Judge further directed that in default of

payment of fine each accused shall further undergo simple

imprisonment for two years. Learned Sessions Judge Una also

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convicted all accused persons to undergo rigorous

imprisonment for seven years and to pay fine to the tune of

`1000/- (Rupees one thousand only) each under Section 201

read with Section 34 IPC. Learned Sessions Judge Una further

directed that in default of payment of fine accused persons

would undergo simple imprisonment for six months. Learned

Sessions Judge Una also directed that both sentences of

imprisonment would run concurrently.

5. Feeling aggrieved against the judgment and

sentence passed by learned trial Court appellants have filed

the present appeals.

6. We have heard learned Advocates appearing on

behalf of appellants and learned Additional Advocate General

appearing on behalf of the respondent and also perused the

entire record carefully.

7. Following points arise for determination in the

present appeal:-

1. Whether learned trial Court did not properly

appreciate the oral as well as documentary

evidence on record and whether learned trial

Court has caused miscarriage of justice to

appellants as mentioned in memorandum of

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grounds of appeals Nos. 14 of 2010, 422 of

2011, 34 of 2010 and 142 of 2010?

2. Final order.

8. Findings on point No.1 with reasons:

8.1. PW1 Krishan Dev has stated that he retired as

head constable from police department in the year 2003. He

has stated that after retirement he purchased one Tavera

vehicle for his deceased son Rajnish @ Bhishu. He has stated

that age of deceased was 31 years. He has stated that his

deceased son used to ply Tavera vehicle for private use and

registration number of vehicle is HP-19A-1966. He has stated

that his deceased son was in possession of driving licence. He

has stated that on 10.10.2008 in the morning his son left from

his residential house alongwith vehicle and further stated that

his son was in possession of two mobile phones. He has stated

that his wife contacted at 8/8.30 PM on 10.10.2008 and his

wife was informed by deceased that he would come to the

house after some time. He has stated that when his son did

not return to his residential house till 10 PM then his wife tried

to contact the deceased son at 10 PM on his mobile phone and

his mobile phone was found to be switched off and his wife

could not contact deceased desp ite repeated calls. He has

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stated that on 11.10.2008 Lekh Raj Up-Pardhan G.P. Mawa

Kaholan had telephonically informed that dead body of his son

was lying by the side of link road at Chalet. He has stated that

link road was from Chalet to Gagret. He has stated that throat

of his deceased son was cut and there was injury upon throat

with sharp edged weapon. He has stated that hands of his son

have also sustained marks of injuries. He has stated that it

appeared that with a view to protect himself deceased had

raised his hands. He has stated that there were marks of tyre

of tractor near the dead body. He has stated that dead body

of his son was lying upon the ground with blood smearing

earth. He has stated that tyre of tractor had left the marks of

blood stained earth. He has stated that it was found that on

10.10.2008 in the evening his son had visited liquor shop near

petrol pump in the area of Chalet and it was found that

accused persons were also present in liquor shop. He has

stated that accused persons had beaten one Billu and his

deceased son had saved Billu from grip of accused persons

and asked him to go to his house in Tavera vehicle of his

deceased son. He has stated that his deceased son had

supplied the key of his Tavera vehicle to Billu and Billu left the

liquor shop in Tavera vehicle of his deceased son. He has

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stated that Billu had also informed about incident to Pardhan

on 10.10.2008. He has stated that he also reported the matter

to police under Section 154 Cr.P.C. Ext.PW1/A and thereafter

police officials rushed to the shop where dead body of his son

was lying. He has stated that police also took into possession

the blood stained earth and started investigation. He has

stated that dead body of deceased was sent for post mortem.

He has stated that co-accused Kapil Dev had informed the

police officials that accused person Kamal Dev took off his

blood stained clothes and directed him to burn the clothes. He

has stated that ash was recovered as per disclosure

statement. He has denied suggestion that accused persons

did not give the disclosure statement and also denied

suggestion that he has deposed falsely in Court.

8.2 PW2 Pardeep Kumar has stated that he is Pardhan

of G.P. Mawa Kaholan w.e.f. 31.1.2006 and village Chalet is in

his jurisdiction. He has stated that on 10.10.2008 at about 9

PM Rajesh @ Billu had telephonically informed him on his

mobile phone that accused person namely Kamal Dev had

picked up quarrel with him. He has stated that he asked Billu

to go to his residential house and report the matter to him on

next day. He has stated that on next day in the morning when

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he was on morning walk and when he was in the area of

Nangal Jarliana at about 6 AM he met some persons. He has

stated that persons informed him that deceased Rajnish @

Bhishu of his village who was owner of Tavera vehicle was

murdered. He has stated that on receipt of this information he

rushed to village Chalet and Lekh Raj Up-Pardhan had earlier

telephonically informed the police officials. He has stated that

when he reached the area of Chalet he found that dead body

of deceased Rajnish @ Bhishu was lying on the road side and

there were injury marks on throat of Rajnish @ Bhishu. He has

stated that there was blood on the ground and marks of tyres

of tractor were also found on earth. He has stated that police

recorded the statement and al so obtained photographs of

dead body and further stated that photographs are Ext.PW2/A-

1 to Ext.PW2/A-4. He has stated that police sealed the holy

thread in separate parcel packet with seal ‘M’. He has stated

that police impounded tractor having registration No. HP-19-

4826. He has stated that police also obtained blood stains

from the tractor and sealed in his presence. He has stated that

documents of tractor along with tractor were also recovered

by police vide memo Ext.PW2/B. He has stated that he has

signed memos Ext.PW2/B, Ext.PW2/C and Ext.PW2/D. He has

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stated that police also recovered two mobile phones from the

pocket of deceased vide recovery memo Ext.PW2/E. He has

stated that police also took into possession the purse of

deceased. He has stated that police also obtained the

photograph of tractor Ext.PW2/F. He has stated that petrol

pump was at a distance of 100-150 yards from the place

where dead body was recovered at the link road. He has

stated that dead body was found on main road. He has stated

that tractor was recovered from the house of co-accused Kapil

Dev.

8.3 PW3 Dev Saroop has stated that he is tea vendor

and his shop was in front of shop of co-accused Kamal and

further stated that police raided and searched the shop of co-

accused Kamal on 11.10.2008. He has stated that he knew co-

accused Kamal present in Court. He has stated that co-

accused Kamal is a hair dresser. He has stated that police

officials recovered one wrist watch from shop of co-accused

Kamal and wrist watch was stained with blood. He has stated

that apart from wrist watch there were marks of blood in and

outside the shop of co-accused Kamal. He has stated that

police had collected the marks of blood from the ground of

shop and outside the shop an d sealed the same. He has

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stated that wrist warch was also sealed separately vide

seizure memo. He has stated that he has signed both

documents on outer cover of both sealed packets. He has

denied suggestion that all proceedings were completed by

police officials and thereafter he was called to sign document

Ext.PW3/A. Self stated that he is local resident of area and he

is familiar with the facts. He has denied suggestion that he

has deposed falsely in Court.

8.4 PW4 Rajesh Kumar has stated that accused

persons are known to him and further stated that he is

working in Sonalika factory at Amb. He has stated that he

used to take the vehicle of factory upto Hoshiarpur and

thereafter he was on his way from Hoshiarpur to his village.

He has stated that he boarded down the vehicle at Chalet at

about 8 PM. He has stated that he noticed Tavera vehicle of

deceased Rajnish @ Bhishu at Chalet and as deceased was

known to him therefore he inquired from deceased Rajnish

about the fact whether deceased was going to his village. He

has stated that deceased Rajnish informed him that he would

go to his village after sometime. He has stated that thereafter

he stayed at Chalet and accused persons Nos. 1 to 3 present

in Court were consuming liquor in liquor shop near petrol

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pump. He has stated that co-accused Roshan Lal picked up

quarrel with him without any reason. He has stated that he

asked co-accused Roshan Lal to keep away and thereafter co-

accused Kapil came and asked him as to why he was

quarrelling with his friend Roshan Lal. He has stated that

deceased Rajnish @ Bhishu saved him from co-accused Kapil

and Roshan Lal and asked him to return to his house in his

Tavera vehicle. He has stated that deceased Rajnish had given

key of Tavera vehicle to him and he started Tavera vehicle

and came to petrol pump for fuel purpose. He has stated that

thereafter accused persons Nos. 1 to 3 followed him in tractor.

He has stated that co-accused Roshan Lal was in possession of

a bag and one scythe was kept in bag and its handle was

visible to him. He has stated that deceased Rajnish @ Bhishu

had also reached petrol pump. He has stated that he reversed

the Tavera vehicle with a view to approach his village. He has

stated that thereafter co-accused Kapil came to Tavera

vehicle from conductor side and tried to drag him out of the

vehicle. He has stated that he started Tavera vehicle and sped

away. He has stated that thereafter he informed Pardhan

Partap on his mobile phone. He has stated that thereafter he

informed deceased Rajnish that he had reached the village

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and thereafter he requested deceased Rajnish to hand over

the mobile to Kapil and he informed Kapil that he had

informed the Pardhan about incident. He has stated that next

day he came to know that accused persons have caused the

death of deceased. He has stated that he left the deceased at

petrol pump and spot of recovery of dead body of deceased

was 150-200 yards from petrol pump. He has stated that co-

accused Kapil Dev had given disclosure statement that Kamal

had given his pant, shirt and vest to him and all these clothes

were smeared with blood. He has stated that co-accused Kapil

had informed the police that he had set on fire blood stained

clothes of Kamal. He has stated that disclosure statement of

Kapil was reduced into writing and ash of clothes was

recovered as per disclosure statement given by accused

persons. He has stated that co-accused Roshan Lal had

slapped him and he pushed him back and further stated that

co-accused Kapil also started quarrelling with him on the

ground that why he had pushed co-accused Roshan Lal. He

has stated that accused persons had blocked his route with

their tractor. He has stated that he parked the Tavera vehicle

in the market of Mawa Kaholan as he was directed by

deceased. He has stated that house of deceased is situated at

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a distance of 1½ K.m. from the place where he parked the

vehicle. He has stated that deceased had also asked him to

keep the key in vehicle on one side without locking the driver

window. He has stated that he was informed about murder of

deceased on 11.10.2008 in the morning at 6 AM when he was

in his house. He has stated that police officials have

interrogated him about incident. He has denied suggestion

that co-accused Kapil Dev and Roshan did not have any talk

with him on 10.10.2008. He has denied suggestion that

accused persons did not pick up quarrel with him. He has

denied suggestion that co-accused Kapil Dev did not give any

disclosure statement. He has denied suggestion that co-

accused Nos. 2 and 3 have been falsely implicated in present

case.

8.5 PW5 Devinder Singh has stated that in 2008 he

was working as salesman in liquor shop. He has stated that on

10.10.2008 in the evening accused persons Nos. 1 to 3

present in Court visited the liquor shop and purchased liquor

from there and started consuming the liquor in liquor shop. He

has stated that PW4 Rajesh Kumar visited the liquor shop and

accused persons picked up quarrel with PW4. He has stated

that thereafter PW4 sped away in vehicle of deceased Rajnish

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and thereafter accused persons Nos. 1 to 3 also left the liquor

shop and accused persons had left the liquor shop in tractor of

co-accused Kapil. He has stated that colour of tractor was blue

and deceased Rajnish had also gone away from liquor shop in

same tractor. He has denied suggestion that accused persons

did not pick up quarrel with PW4 Rajesh and deceased Rajnish

on 10.10.2008. He has deni ed suggestion that accused

persons did not left the liquor shop along with deceased upon

the tractor. He has denied suggestion that buses ply on

Chalet, Gagret road even at night time.

8.6 PW6 Rajesh Prashar has stated that he is

correspondent of Himachal news channel of District Una. He

has stated that accused person Kapil Dev had given disclosure

statement and one blood stained stone was recovered as per

disclosure statement given by co-accused Kapil Dev. He has

stated that ash was also recovered as per disclosure

statement and recovery memo Ext.PW6/A was prepared. He

has stated that thereafter blood stained vest recovered as per

recovery memo Ext.PW6/B. He has denied suggestion that co-

accused Kapil Dev did not give any disclosure statement.

8.7 PW7 Umesh has stated that on 10.10.2008 he was

on his way from Bhabnout to Mawa Kaholan on his scooter. He

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has stated that when he reached at Chalet at 8.30 PM he

stopped in front of liquor shop. He has stated that Roshan Lal

accused person present in Court was quarrelling with Rajesh

@ Billu PW4. He has stated that they were separated at the

intervention of others. He has stated that thereafter deceased

had handed over the key of his vehicle to PW4 and PW4 had

gone in vehicle and thereafter he also left. He has stated that

accused persons left the liquor shop in tractor. He has stated

that he found that tractor was parked near the highway. He

has stated that deceased was with accused persons in liquor

shop. He has stated that dead body of deceased was

recovered at a distance of 150 yards from the place when he

had seen the tractor parked on highway. He has denied

suggestion that accused persons Nos. 1 to 3 have approached

him to resile from his earlier statement.

8.8 PW8 Naresh Kumar has stated that accused

persons are known to him. He has stated that on 11.10.2008

at about 4.30 to 5 PM he left his house for morning walk. He

has stated that when he was on his way to his house he saw

accused person Kamal Kumar at about 6 AM in the area of

Chalet. He has denied suggestion that he did not see Kamal

Kumar on the way to his house on 11.10.2008 at about 6 AM.

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8.9 PW9 Om Parkash has stated that accused Kamal

Kumar present in Court is known to him. He has stated that on

14.10.2008 co-accused Kamal Kumar produced one scythe to

police from sugarcane field in the area of Chalet. He has

stated that sketch Ext.PW9/A was prepared. He has stated

that length of scythe was 55 cm and blade of scythe was 28

cm and handle thereof was 27 cm. He has stated that scythe

(Sharp edged weapon) is Ext.P11. He has denied suggestion

that co-accused Kamal Kumar did not produce scythe Ext.P11

before the police. He has denied suggestion that he is

deposing falsely in the Court on account of relations with

Krishan Dev.

8.10 PW10 Raj Kumar has stated that co-accused

Kamal Kumar had given disclosure statement that scythe used

in commission of offence of crime was concealed in sugarcane

field in village Chalet. He has stated that co-accused Kamal

Kumar also informed that he handed over his pant, shirt and

vest to co-accused Kapil. He has stated that he has also given

statement that pant was kept by him in his house at village

Ambota. He has denied suggestion that co-accused Kamal did

not give any disclosure statement Ext.PW10/A. He has denied

suggestion that co-accused Kamal did not inform the police

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that he handed over the pant, shirt and vest to co-accused

Kapil. He has denied suggestion that he has given wrong

statement on account of friendship with Kamal.

8.11 PW11 Kamal Kumar has stated that on 14.10.2008

co-accused Kamal Kumar took police officials to his house and

one pant of black colour was recovered. He has stated that he

has signed recovery memo Ext.PW11/A.

8.12 PW12 HC Sukhdev has stated that a pair of shoes

of black colour Ext.P13 recovered as per disclosure statement

given by co-accused Kamal Kumar. He has denied suggestion

that co-accused Kamal did not produce shoes Ext.P13.

8.13 PW13 Arvind has stated that he is working as J.E.

in HPPWD at Daulatpur w.e.f. 2007 to March 2009 and he

prepared site plan Ext.PW13/A of the site of crime.

8.14 PW14 Rajinder Parsad has stated that he is

running a photo studio at Daulatpur. He has stated that on

11.10.2008 at the instance of Gagret police he took

photographs of site of crime. He has stated that photographs

are Ext.PW2/A-1 to Ext.PW2/ A-4 and Ext.PW14/A. He has

stated that marks of tyres of tractor were visible in

photograph Ext.PW12/A. He has stated that photogrpahs

Ext.PW2/F and Ext.PW14/A-2 to Ext.PW14/A-4 are of tractor.

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He has stated that there were marks of blood upon tractor and

in scarf. He has stated that one of accused persons namely

Kamal Kumar is running barber shop at Mawa and he also took

photographs Ext.PW14/A-5 to Ext.PW14/A-7 of his shop. He

has stated that there were marks of blood in the shop of co-

accused Kamal Kumar. He has stated that vest was recovered

at the instance of Kapil and he also took photograph of it. He

has stated that digital came ra was issued for taking

photographs. He has denied suggestion that there were no

marks of blood in shop of co-accused Kamal Kumar. He has

denied suggestion that there were no marks of blood on

tractor. He has denied suggestion that there was no ash and

no ash was recovered as per disclosure statement of Kapil.

8.15 PW15 Dr. Ravinder Mohan has stated that he is

working as medical officer in Health and Family Welfare

department and he has conducted the post mortem

examination of dead body of deceased on 11.10.2008. He has

stated that on observation it was found that external

appearance of dead body of male adult of average built length

was 5’8” wearing yellowish T-shirt with blackish stripes grey

pant white socks and blue underwear and further stated that

deceased also weared yellow metal ring in left ear and white

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metal ring in right ring finger with blackish stone. He has

stated that (1) On left hand a sharp edged injury was found on

left thumb at the level MP joint on volar aspect, depath bone

cut at base of proximal phalynx through and flexor and

abductors tendol injury was also found. He has stated that

direction of wound was from the first web space to volar

aspect of thumb and injury was ante mortem in nature. (2) On

right hand a sharp edged injury on palmer aspect of right

middle finger and right index finger in proximal space

between proximal IP and middle IP joint space and injury was

tapering towards right side which was skin deep. (3) On neck

the extent of wound with loss of skin from angle of mandible

sub mandible region was found and frontal aspect of neck

upto sternal notch was found. He has stated that esophagus

trachea and major blood vessels bilateral carotid arteries,

jugular veins and strap muscles at the level of inferior border

of thyroid cartilage with injury to cervial certebrae at the level

of C5 was found and wound was found to be ante mortem in

nature. He has stated that deceased had died due to ante

mortem sharp injury to the vital structures in neck leading to

haemmorhage shock and death. He has stated that probable

time between injury and death was 5 to 10 minutes and post

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mortem was within 24 hours. He has stated that he had issued

post mortem report Ext.PW15/A which was duly signed by

him. He has stated that police officials filed application

Ext.PW15/B for post mortem examination of deceased. He has

stated that Medical Superintendent directed him to carry out

the post mortem examination an d police also filed inquest

reports Ext.PW15/D and Ext.PW15/E. He has admitted that

injury noticed upon the throat/neck and hands of deceased

are possible by scythe Ext.P11. He has stated that he had

collected contents of intestines, liver, spleen, stomach, heart,

lungs of deceased for chemical analysis. He has stated that he

had sealed the viscera with seal of medical officer and further

stated that he had collected clothes of deceased for chemical

analysis. He has stated that he took into possession pant

Ext.P14, shirt Ext.P15, socks Ext.P16 and shoes Ext.P17 from

dead body of deceased for chemical analysis. He has stated

that all items were smeared with blood. He has denied

suggestion that scythe Ext.P11 is not a sharp edged weapon.

He has stated that there were three layers in skin and all three

layers were cut in present case. He has stated that injury to

throat of deceased was started from below the chin and upto

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lower end of throat. He has stated that injury to throat was

chopped up.

8.16 PW16 Vikram Singh has stated that he is working

as MHC at P.S. Gagret w.e.f. 17.7.2006 and he has brought the

daily diary of P.S. Gagret. He has stated that PW1 Krishan Dev

had telephonically reported the murder of his son at 7.30 am

on 11.10.2008 vide report No.10-A copy of which is

Ext.PW16/A of P.S. Gagret. He has stated that Ext.PW16/A is

correct copy of report as per register brought by him. He has

stated that he registered FIR Ext.PW16/B against accused

persons and copy of FIR was sent to Additional SHO. He has

stated that since he had to proceed on leave he left police

station on 11.10.2008. He has stated that in his absence

Additional MHC Narender Kumar was incharge of his seat. He

has denied suggestion that FIR was registered after

11.10.2008 and was issued in the back date.

8.17 PW17 ASI Vikram Singh has stated that he is

working as ASI P.S. Gagret w.e.f. September 2008. He has

stated that dead body of deceased was took into possession.

He has stated that he filed application Ext.PW15/B, inquest

forms Ext.PW15/D and Ext.PW15/E before medical officer. He

has stated that medical officer handed over viscera of

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deceased and blood stained clothes duly sealed with seal and

he deposited the same with Additional MHC on 11.10.2008 in

the evening.

8.18 PW18 HC Navin Kumar has stated that he is

working as head constable in police station Gagret w.e.f.

August 2008 to 31.3.2009. He has stated that on 11.10.2008

Vikram Singh MHC proceeded on leave and as per the order of

SHO he was incharged MHC. He has stated that PW17

deposited two sealed packets containing viscera of deceased

and his blood stained clothes with him and on the same day

Mohinder Singh Additional SHO deposited seven sealed

packets with him. He has stated that these packets contained

blood of deceased and other items. He has stated that on

13.10.2008 Mohinder Singh deposited two sealed packets with

him and further stated that packets were alleged to contain

shoes of accused persons and on 14.10.2008 I.O. had

deposited two sealed parcels alleged to have contained scythe

and pant of accused persons. He has stated that he

transmitted the sealed packets to Chemical Examiner Junga

through C. Pardeep vide RC No. 359 of 2008. He has stated

that he returned the RC on 20.10.2008. He has stated that

case property remained intact in his custody. He has stated

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that some objections were raised by chemical examiner and

thereafter objections were removed and case property was

again sent to laboratory.

8.19 PW19 Pardeep Kumar has stated that he is

working as constable in P.S. Gagret for the last two years. He

has stated that on 16.10.2008 PW18 handed over the case

property in sealed cover with direction to deposit in office of

FSL Junga vide RC No. 359 of 2008. He has stated that he took

the case property to laboratory and since some objections

were raised he brought the case property back to police

station. He has stated that thereafter on removing the

objections he again took the case property to office of FSL

Junga on 20.10.2008. He has stated that case property

remained intact in his custody. He has denied suggestion that

he did not deposit the case property in office of chemical

examiner.

8.20 PW20 Nasib Singh Patial Scientific Officer posted

in FSL Junga has stated that he had qualified M.Sc in Math

from H.P. University in 2005 and had also done post

graduation in Math. He has stated that he was appointed as

Scientific Officer in Physics and Ballistics Division FSL Junga.

He has stated that he received parcel and seals on the parcel

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were intact and tallied with sample seals which were

separately sent. He has stated that he examined the parcel

and after examination he found that thread Ext.P1 stood cut

by a sharp edged weapon. He has stated that ash Ext.P8 was

of burnt cloth and contained small metal piece which was a

part of zip used in pants. He has stated that he also examined

sharp edged weapon i.e. scythe Ext.P11 received in laboratory

and found that thread was cut with scythe. He has stated that

he prepared report Ext.PW20/A which is duly signed by him

and was counter signed by Dr. Rajesh Kumar. He has stated

that he is conversant with hand writing and signatures of

Dr.Rajesh Kumar. He has denied suggestion that his opinion

was based on surmises and conjectures and his opinion was

not based upon facts.

8.21 PW21 Ajay Sehjal Scientific Officer FSL Junga has

stated that he had passed M.Sc in Botany in 1994 from

Dr.B.R.Ambedkar University Ag ra and thereafter he has

qualified post graduation in Botany. He has stated that

thirteen parcels duly sealed with seals received by Biology

and Serology Division from the police. He has stated that seals

on these parcels tallied with specimen impression of seal sent

by police. He has stated that apart from 13 parcels Biology

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Division had received one parcel duly sealed from Chemistry

and Toxicology divison of FSL and further stated that seals

applied to parcel tallied with specimen impression of seals

separately sent by Chemistry division. He has stated that he

examined 13 parcels and prepared report Ext.PW21/A which is

duly signed by him and counter signed by Dr. Gian Thakur. He

has stated that he found human blood of A group on Ext.P18

blood collected from spot, Ext.P1 metallic locket, Ext.P3 dust

and soil component collected from spot, Ext.P6 wrist watch

HMT, Ext.P7 blood stained soil collected from tractor, Ext.P13

shoes of Kamal Kumar, Ext.P12 pant of Kapil Kumar, Ext.P11

sickle, Ext.P14 pant of deceased Rajnish, Ext.P15 t-shirt of

deceased Rajnish and human blood was found on pieces of

flesh lifted near the dead body. He has also stated that human

blood was also found on scarf, vest of co-accused Kamal

Kumar and shoes of deceased Rajnish and socks of deceased

Rajnish. He has denied suggestion that his report was based

on surmises and conjectures.

8.22 PW22 Mohinder Singh has stated that he is

working as SI/Additional SHO with P.S. Gagret w.e.f.

September 2007 and on 11.10.2008 at about 7.30 AM he was

present in police station. He has stated that telephone

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information was received about murder of deceased Rajnish.

He has stated that rapat No. 10-A Ext.PW16/A was recorded in

daily diary and thereafter he along with police officials rushed

to village Chalet and dead body of deceased was found on

highway. Again stated that some portion of dead body was on

bank of highway and rest of portion of dead body was beyond

the highway. He has stated that marks of tyre of tractor were

found on highway and blood was scattered on highway and

tyre marks were also present. He has stated that he examined

dead body of deceased and found that there was cut marks

with sharp edged weapon on front side of throat of deceased.

He has stated that there were also marks of injuries upon

hands of deceased. He has stated that he took photogrpahs

Ext.PW2/A-1 to Ext.PW2/A-4 and Ext.PW14/A and also

recorded statement under Section 154 Cr.P.C. and forwarded

the same to police station for registration of FIR through C.

Pardeep Kumar. He has stated that he also collected blood

from place where dead body was left vide recovery memo

Ext.PW2/B and also collected pieces of flesh Ext.P4, blood

stained earth Ext.P3 and holy thread applied to neck of

deceased Ext.P1 vide recovery memo Ext.PW2/A in presence

of witnesses. He has stated that thereafter he filed inquest

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forms Ext.PW15/D and Ext.PW 15/E and dead body was

identified by Pardeep Kumar and Krishan Chand. He has

stated that thereafter he prepared application Ext.PW15/B and

sent the dead body for post mortem examination to District

Hospital Una through Vikram Singh ASI, HHC Mulakh Raj and

Surinder Singh. He has stated that thereafter he prepared

rough sketch Ext.PW20/B. He has stated that co-accused

Kamal Dev was performing the business of hair dressing in

village Mawa Kaholan. He has stated that he also found marks

of blood in verandah of shop of co-accused Kamal Dev. He has

stated that he also found marks of blood inside the shop of

Kamal Dev. He has stated that one wrist watch was found on

counter of shop of Kamal Dev. He has stated that wrist watch

had also marks of blood. He has stated that he took

photographs of blood stains. He has stated that photographs

are Ext.PW14/A-5 to Ext.PW14/A-7 and he also collected the

blood from shop of co-accused Kamal Dev and from verandah

of shop in presence of Ashwani Kumar and Dev Saroop vide

recovery memo Ext.PW3/A. He has stated that wrist watch is

Ext.P6 and blood stained earth is Ext.P7 and items were

sealed by him with seal ‘Z’ and then seal was handed over to

HC Ashwani Kumar. He has stated that he also examined

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tractor No. HP-19-4826 which was parked outside the house of

Kapil Dev. He has stated that he examined tractor and found

marks of blood on foot rest, pressure pipe of the brake of

tractor, on tool box of tractor and on liver of tractor. He has

stated that there were marks of blood upon scarf tied around

the steering rod. He has stated that Ext.PW2/F is photograph

of steering rod and scarf tied to the steering rod to the tractor

and other photographs are Ext.PW14/A-1 to Ext.PW14/A-4. He

has stated that he collected the blood from various parts of

tractor and sealed the same in packet with seal ‘B’ and took

into possession vide recovery memo Ext.PW2/D. He has stated

that marks of blood are Ext.P5 and tractor along with

documents took into possession vide seizure memo

Ext.PW2/D. He has stated that scarf Ext.P2 was separately

sealed with seal ‘V’ and took into possession vide recovery

memo Ext.PW2/C. He has stated that seal V was handed over

to Pardeep Kumar Pardhan and he also prepared sketch map

Ext.PW22/C of shop of co-accused Kamal Dev and also

recorded statements of witnesses. He has stated that co-

accused Kapil Dev has given disclosure statement that clothes

which were worn by him and another co-accused Kamal Dev

were burnt by him in the nearby local river Mawa. He has

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stated that disclosure statement of co-accused Kapil Dev is

Ext.PW1/B. He has stated that vest was also recovered as per

disclosure statement given by co-accused Kapil Dev. He has

stated that ash Ext.P8 and stone Ext.P9 took into possession

vide recovery memo Ext.PW6/A. He has stated that he also

took photographs of site and also prepared sketch maps

Ext.PW22/D and Ext.PW22/E. He has stated that vest Ext.P10

took into possession vide recovery memo Ext.PW6/B. He has

stated that he also took into possession the shoes of co-

accused Kamal Dev Ext.P13 vide recovery memo Ext.PW12/A

which were worn by him at the time of incident. He has stated

that he also recorded disclosure statement of co-accused

Kamal Dev. He has stated that co-accused Kamal Dev has

stated that he had concealed the scythe in the field of

sugarcane. He has stated that pant was also recovered as per

disclosure statement given by co-accused. He has stated that

he also recovered scythe Ext.P11 vide recovery memo

Ext.PW9/B and further stated that marks of blood were

present on scythe. He has stated that he also collected post

mortem report Ext.PW15/A from medical officer. He has stated

that he recorded statements of prosecution witensses as per

their versions. He has stated that accused persons were lastly

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seen with deceased by Billu @ Rajesh. He has stated that

accused persons had caught hold of deceased and caused

multiple injuries upon him with sharp edged weapon. He has

stated that deceased had tried to save himself and blow of

scythe struck against his hands. He has stated that report of

chemical examiner is Ext.PY. He has stated that he recorded

statements of prosecution witnesses as per their versions and

thereafter prepared final report under Section 173 Cr.P.C. He

has stated that he also prepared supplementary report and

submitted in Court. He has denied suggestion that Tavera

vehicle had struck against the person of co-accused Kapil Dev.

He has denied suggestion that there was no mark of blood on

floor/verandah of shop and wrist watch. He has denied

suggestion that he had tried to create evidence. He has

denied suggestion that co-accused Kamal Dev had not made

any disclosure statement relating to scythe (Sharp edged

weapon). He has denied suggestion that he did not record

statements of prosecution witnesses as per their versions. He

has denied suggestion that co-accused Kapil Dev did not give

any disclosure statement under Section 27 of Indian Evidence

Act. He has denied suggestion that ash was recovered from

cremation ground. He has denied suggestion that there was

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no blood stained mark upon tractor, scarf and other parts

thereof.

8.23 PW23 Ranjit Singh has stated that he is working in

BSF department and was on annual leave. He has stated that

about one year back at about 8.30 PM he was present in his

house. He has stated that he had stepped out of his house and

further stated that his house is adjoining the highway. He has

stated that he had seen accused persons Kamal and Kapil

accusing each other. He has stated that he asked them not to

use filthy language in front of his house and thereafter both

accused persons had gone on their tractor. He has stated that

on next day he had seen dead body of Rajnish at about 50-60

yards from the place where he had seen the accused persons

standing. He has stated that accused persons were said to

have thrown away the dead body of Rajnish and managed to

escape. He has stated that there was tractor near his house

and accused persons left upon the tractor. He has denied

suggestion that as dead body was nearby his house he was

scared and had made statement against accused persons.

9. Prosecution tendered following documentary

evidence. (1) Ext.PW1/A statement of Krishan Dev recorded

under Section 154 Cr.P.C. (2) Ext.PW1/B disclosure statement

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recorded under Section 27 of Indian Evidence Act of co-

accused Kapil Dev. (3) Ext.PW2/A-1 to Ext.PW2/A-4

photographs of dead body of deceased and tractor. (4)

Ext.PW2/B recovery memo of blood stained thread. (5)

Ext.PW2/C recovery memo of blood stained scarf. (6)

Ext.PW2/D recovery memo of tractor No. HP-19-4826 along

with documents and blood stained soil. (7) Ext.PW2/E recovery

memo of two mobiles, purse, driving licence and visiting card

from dead body of deceased. (8) Ext.PW9/A sketch of scythe.

(9) Ext.PW3/A recovery memo of blood stained soil taken from

shop of co-accused Kamal Kuma r. (10) Ext.PW6/A recovery

memo of blood stained stone. (11) Ext.PW6/B disclosure

statement given by co-accused Kapil Dev under Section 27 of

Indian Evidence Act. (12) Ext.PW9/B disclosure statement

given by co-accused Kamal Kumar under Section 27 of Indian

Evidence Act. (13) Ext.PW10/A disclosure statement given by

co-accused Kamal Kumar under Section 27 of Indian Evidence

Act. (14) Ext.PW11/A disclosure statement given by co-

accused Kamal Kumar regarding recovery of blood stained

pant under Section 27 of Indian Evidence Act. (15) Ext.PW12/A

Recovery memo of pair of shoes. (16) Ext.PW13/A site plan

showing the place of murder. (17)Ext.PW14/A-1 to

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Ext.PW14/A-14 photographs. (18) Ext.PW15/A post mortem

report of deceased Rajnish aged 31 years. (19) Ext.PW15/B

application moved by police for conducting the post mortem

of deceased Rajnish @ Bhishu. (20) Ext.PW15/C direction of

medical superintendent to conduct post mortem of deceased.

(21) Ext.PW15/D and Ext.PW15/E inquest reports. (22)

Ext.PW16/A daily diary No. 10-A dated 11.10.2008. (23)

Ext.PW16/B FIR No. 146 dated 11.10.2008. (24) Ext.PX copy

of malkhana register. (25) Ext.PW20/A and Ext.PW21/A FSL

reports Junga. (26) Ext.PW22/B to Ext.PW22/G site plans. (27)

Ext.PY FSL report. (28) Ext.DX, Ext.DX-1, Ext.DX-2, Ext.DX-3,

Ext.DX-4 statements of prosecution witnesses.

10. Statements of accused persons recorded under

Section 313 Cr.P.C. Accused have stated that they are

innocent and they have been falsely implicated in present

case. Accused persons did not lead any defence evidence.

(A) Last seen theory of deceased along with accused

persons by way of testimony of PW4 Sh Rajesh Kumar is

hostile to appellants._______________________________

11. We have carefully perused the testimony of PW4

Sh. Rajesh Kumar. PW4 has specifically stated in positive

manner when he appeared in witness box that accused

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persons 1 to 3 present in court were consuming liquor in the

court yard of liquor shop near the petrol pump. PW4 Rajesh

Kumar has specifically stated in positive manner that co-

accused Roshan Lal picked up quarrel with him without any

reason and he asked co-accused Roshan Lal to keep away.

PW4 Rajesh Kumar has stated in positive manner that in the

meanwhile co-accused Kapil came and asked him as to why

he was quarreling with his friend co-accused Roshan Lal. PW4

Rajesh Kumar has stated in positive manner that in the

meanwhile deceased Rajneesh saved him from accused

persons Kapil and Roshan Lal and asked him to return to his

house in his Tavera vehicle. PW4 has specifically stated in

positive manner that he started the vehicle and took the same

to petrol pump for fuel purpose. PW4 Rajesh Kumar has

stated in positive manner that co-accused Roshan Lal was in

possession of one bag and one scythe was in bag and handle

of scythe was visible to him. It is held that as per testimony of

PW4 Rajesh Kumar it is proved on record that deceased was

lastly seen along with accused persons. Hence it is held that

last seen theory is proved as per testimony of PW4 in present

case. We are of the opinion that testimony of PW4 is trust

worthy, reliable and inspires confidence of Court. There is no

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reason to disbelieve the testimony of PW4 Rajesh Kumar.

There is no evidence on record in order to prove that PW4

Rajesh Kumar has hostile animus against accused persons

prior to incident.

(B) Last seen theory of deceased with accused persons is

also proved as per testimony of PW5 Devinder Singh

salesman of liquor shop in present case which is hostile to

appellants.________________________________________

12. We have carefully perused the testimony of PW5

Devinder Singh who was working as salesman in the liquor

shop at relevant time. PW5 Devinder Singh has specifically

stated that there is court yard in the liquor shop. PW5 has

stated in positive manner that on 10.10.2008 in the evening

accused persons 1 to 3 present in Court visited liquor shop

and they purchased liquor from him and started consuming

liquor in the court yard. PW5 has stated in positive manner

that thereafter deceased Rajneesh came to liquor shop and

accused persons have picked up quarrel with PW4 Rajesh and

thereafter PW4 Rajesh left the court yard of liquor shop in

vehicle of deceased Rajneesh. PW5 Devinder Singh has stated

in positive manner that thereafter accused persons 1 to 3 left

the liquor shop in the tractor of co-accused Kapil. Pw5 has

stated that the colour of tractor was blue. PW5 has stated in

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positive manner that deceased Rajneesh has also gone away

from the liquor shop on the same tractor along with accused

persons. Last seen theory of deceased along with accused

persons is also proved beyond reasonable doubt as per

testimony of PW5 Devinder Singh. Testimony of PW5 is trust

worthy, reliable and inspires confidence of Court. There is no

reason to disbelieve the testimony of PW5 Devinder Singh.

(C) Presence of co-accused Kapil and co-accused Kamal

Dev at the distance of 50 to 60 yards from the place where

dead body of deceased Rajneesh was found during night

period at 8.30 PM is also proved beyond reasonable doubt

as per testimony of PW23 Ranjeet Singh which is hostile to

appellants.________________________________________

13. The presence of co-accused Kapil and co-accused

Kamal Dev at a distance of about 50 to 60 yards from the

place where the dead body of deceased was found is also

proved beyond reasonable doubt at 8.30 PM on dated

10.10.2008 in present case. PW23 Ranjit Singh has stated in

positive manner that at about 8.30 PM he has seen co-

accused Kapil and co-accused Kamal Dev were present at a

distance of 50 to 60 yards from the place where the dead

body of deceased was found. PW23 has stated in positive

manner that accused persons have thrown away dead body of

deceased Rajneesh and have managed to escape. PW23

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Ranjit Singh has stated in positive manner that tractor was

also nearby his house. PW23 has stated in positive manner

that accused persons have left on a tractor after 8.30 PM on

10.10.2008. Presence of co-accused Kapil and co-accused

Kamal Dev at a distance of about 50 to 60 yards from the

place where the dead body of deceased Rajneesh was found

along with tractor is proved as per testimony of PW23 Ranjit

Singh in present case. Testimony of PW23 is trust worthy,

reliable and inspires confidence of Court. There is no evidence

on record in order to prove that PW23 Ranjit Singh has hostile

animus against accused persons at any point of time.

(D) Ante mortem death of deceased proved beyond

reasonable doubt in present as per testimony of medical

officer corroborated with post mortem report which is

hostile to appellants

.______________________________________

14. As per testimony of PW15 Dr Ravinder Mohan

deceased Rajneesh had died due to ante mortem sharp injury

(Homicidal) upon vital parts of the body i.e. neck leading to

hemorrhagic shock and death. As per testimony of PW15 Dr.

Ravinder Mohan the probable time between injury and death

was within 5 to 10 minutes and probable time between death

and post mortem was within 24 hours. As per testimony of

PW15 Dr. Ravinder Mohan the deceased had sustained injuries

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upon his left hand and right hand with sharp edged weapon.

As per testimony of PW15 Dr. Ravinder Mohan deceased

Rajneesh had sustained wound upon his neck and wound was

ante mortem in nature. Testimony of PW15 is corroborated

with documentary evidence i.e. post mortem report placed on

record. It is proved beyond reasonable doubt that deceased

had died due to ante mortem injury sustained with sharp

edged weapon. Testimony of PW15 medical officer is also

trust worthy, reliable and inspires confidence of Court. There

is no reason to disbelieve the testimony of PW15.

(E) Switch off two mobile phones of deceased after 8 PM

on 10.10.2008 is proved beyond reasonable doubt as per

testimony of PW1 Krishan Dev which is hostile to

appellants.________________________________________

15. It is proved on record that as per testimony of

PW1 Krishan Dev mother of deceased had contacted deceased

Rajneesh at about 8 PM on 10.10.2008 through his mobile

phone. It is proved on record that as per testimony of PW1

that at 10 PM deceased could not be contacted upon his two

mobile phones as both mobile phones were switch off. The

fact that two mobile phones of deceased were switched off

between 8 to 10 PM clearly proved that deceased was not in

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possession of two mobile phone after 8.30 PM. Same fact is

hostile to appellants.

(F) No evidence of fact that accused persons have dropped

deceased alone from their tractor No. HP-19-4826. Same

fact is hostile to appellants.________________________

16. It is proved on record as per testimony of PW5

Devinder Singh that deceased Rajneesh had boarded in

tractor No. HP-19-4826 on 10.10.2008 during evening time

along with accused persons. There is no evidence on record

that deceased was boarded down from tractor No. HP-19-4826

and was left alone. In the absence of fact that deceased

Rajneesh was boarded down from tractor No. HP-19-4826

during night period on 10.10.2006 theory of intervention of

third person committing homicidal murder of deceased is

ruled out in present case.

(G) Human blood group ‘A’ found upon shoes of co-

accused Kamal, pant of co-accused Kapil and scythe

(Sharp edged weapon) also proved beyond reasonable

doubt in present case as per chemical analyst report Ext

PW21/A which is hostile to appellants.______________

17. It is proved beyond reasonable doubt that human

blood group of deceased was ‘A’. As per chemical analyst

report Ext PW21/A it is proved beyond reasonable doubt that

blood group ‘A’ was found upon shoes of co-accused Kamal

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Dev, pant of co-accused Kapil and wrist watch recovered as

per disclosure statement given by accused persons. Hence it

is held that blood clotted pant of co-accused Kapil, blood

clotted shoes of co-accused Kamal Dev, blood clotted scythe

(sharp edged weapon) used for commission of homicide and

blood clotted wrist watch recovered as per disclosure

statement of accused connects the accused persons with the

commission of homicide of deceased. No explanation is given

by accused persons as to how the blood group ‘A’ was found

upon shoes of co-accused Kamal, pant of co-accused Kapil and

blood clotted wrist watch recovered from the shop of accused.

Above stated facts incriminate accused persons for the

commission of homicidal death of deceased Rajneesh.

(H) Disclosure statement given by co-accused Kapil under

Section 27 of Indian Evid ence Act and disclosure

statement given by co-accused Kamal incriminate

accused persons beyond reasonable doubt.__________

18. Disclosure statement of co-accused Kapil Dev

proved on record as per testimony of PW4 Rajesh Kumar. PW4

Rajesh Kumar has specifically stated in positive manner that

disclosure statements were given by accused persons in his

presence. Testimony of PW4 Rajesh Kumar relating to

disclosure statement of co-accused Kamal Dev is trust worthy,

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reliable and inspires confidence of Court. There is no reason to

disbelieve the testimony of PW4. There is no evidence on

record that PW4 has hostile animus against the accused

persons at any point of time. Even disclosure statement given

by co-accused Kapil is also proved on record beyond

reasonable doubt as per testimony of PW9 Om Parkash.

Testimony of PW9 is trust worthy, reliable and inspires

confidence of Court. Sharp edged weapon scythe used for the

commission of offence was recovered as per disclosure

statement given by accused. Blood group of deceased ‘A’ was

found upon scythe (Sharp edged weapon) recovered as per

disclosure statement of accused. Weapon of attack scythe is

connected with homicidal of deceased beyond reasonable

doubt.

(1) Finding in Criminal Appeal No. 14 of 2010 titled Kamal

Dev Vs. State of HP and Criminal Appeal No. 422 of 2011

titled Kamal Dev Vs. State of HP_____________________

.

19. Submission of learned Advocate appearing on

behalf of co-appellant Kamal Dev that co-appellant Kamal Dev

is running hair dressing shop in Mava Kohlan market and he is

physically handicapped person as his one leg is artificial

limbed and present case is based upon circumstantial

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evidence and in the absence of motive the case of prosecution

becomes doubtful and on this ground appeal be accepted is

rejected being devoid of any force for the reasons hereinafter

mentioned. Involvement of co-appellant Kamal Dev is proved

in present case beyond reasonable doubt for the commission

of homicide of deceased Rajneesh as per oral and

documentary evidence placed on record by prosecution in

view of reasons mentioned in paras 11 to 18 of judgment.

Same are not reproduced again in order to avoid repetition.

Present case is a case of circumstantial evidence and in

circumstantial evidence there are five golden principles. (1)

That circumstances from which the conclusion of guilt is to be

drawn should be fully established (2) That facts so established

should be consistent only with the hypothesis of the guilt of

accused. (3) That circumstances should be of a conclusive

nature. (4) That chain of circumstantial evidence should be

completed. (5) That innocence of accused should be ruled out.

See 2013 Cri.L.J 2040 Apex Court titled Prakash Vs. State of

Rajasthan

. It is well settled law that last seen theory comes

into play only when time gap between the point of time when

accused persons and deceased were last seen together and

when deceased was found dead was so small that possibility

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of any person other then accused being author of the crime

becomes impossible.

See AIR 2008 SC 2819 titled Kusuma Ankama

Rao Vs. State of A.P.

In the present case as per oral as well as

documentary evidence placed on record it is proved that co-

accused Kamal Dev was seen at a distance of about 50 to 60

yards from the dead body of deceased during night time. It is

proved beyond reasonable doubt that deceased travelled in

tractor No. HP-19-4826 along with accused persons and there

is no evidence on record that thereafter deceased was

boarded down from the tractor No. HP-19-4826. It is proved on

record beyond reasonable doubt that tractor and accused

persons Kapil Dev and Kamal Dev were seen during night

period after 8.30 PM along with tractor at a distance of 50 to

60 yards from the dead body of deceased by PW23 Ranjit

Singh. It is held that time gap between point of time when

accused persons and deceased were last seen together and

when deceased was found dead was so small that possibility

of any person other then accused being author of the crime

becomes impossible in present case. It is proved on record

that death of deceased was caused with sharp edged weapon

and ante mortem injury was caused upon the body of

deceased with sharp edged weapon and human blood group

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‘A’ of deceased was found upon scythe i.e. sharp edged

weapon. It is proved on record that scythe (Sharp edged

weapon) was recovered as per disclosure statement given by

accused persons. Hence involvement of third person for the

commission of murder of deceased Rajneesh is ruled out in

present case.

20. Submission of learned Advocate appearing on

behalf of co-appellant Kamal Dev that dead body of deceased

Rajneesh was found on the road i.e. State High way road and

place is surrounded by ‘Abadies’ and shops as is evident from

site plan and involvement of third person on State High way

cannot be ruled out and on this ground appeal be accepted is

rejected being devoid of any force for the reasons hereinafter

mentioned. As per testimony of PW23 Ranjit Singh co-accused

Kamal Dev and Kapil were found at a distance of 50 to 60

yards from the dead body of deceased during night period

after 8 PM. There is positive evidence on record that deceased

lastly boarded tractor No. HP-19-4826 and there is no

evidence on record in order to prove that thereafter deceased

had boarded down from tractor No. HP-19-4826. There is no

evidence on record that third person had intervened for the

commission of crime. Hence it is held that intervention of third

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person in the commission of crime is ruled out in present case

and involvement of co-appellant Kamal Dev is proved beyond

reasonable doubt as per oral as well as documentary evidence

adduced on record. Even as per chemical analyst report

placed on record deceased was having blood group ‘A’ and as

per chemical analyst report Ext PW21/A placed on record

human blood group ‘A’ was found upon shoes of co-accused

Kamal Dev. No explanation given by co-appellant Kamal Dev

as to how human blood group ‘A’ came upon the shoes of co-

appellant Kamal Dev and upon scythe (Sharp edged weapon)

used for commission of murder of deceased.

21. Submission of learned Advocate appearing on

behalf of co-appellant Kamal Dev that two views have

emerged in present case and benefit of doubt should be given

to co-appellant Kamal Dev is rejected being devoid of any

force for the reasons hereinafter mentioned. We are of the

opinion that two views have not emerged in present case and

it is proved on record that co-appellant Kamal Dev was lastly

seen in the company of deceased. It is proved on record that

co-accused Kamal Dev and co-accused Kapil were seen by

PW23 Ranjit Singh at about 8.30 PM where the dead body of

deceased was recovered. It is proved beyond reasonable

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doubt that deceased boarded tractor No. HP-19-4826 along

with co-appellant Kamal Dev. There is no positive and reliable

evidence on record that co-appellant Kamal Dev was boarded

down from tractor No. HP-19-4826. On the contrary it is

proved on record that deceased boarded tractor No. HP-19-

4826 and thereafter only dead body of deceased was found

and murder of deceased was committed with sharp edged

weapon. It is proved on record that sharp edged weapon was

recovered as per disclosure statement given by accused

persons. It was held in case reported in

AIR 1989 SC 1593 titled

Rambilas Singh and others Vs. State of Bihar

that in order to

convict persons vicariously under Section 34 IPC it is not

necessary to prove that each and every one of them had

indulged in overt acts.

See 1993 (1) 294 titled Har Om and others

Vs. State of UP

.

22. Submission of learned Advocate appearing on

behalf of co-appellant Kamal Dev that introduction of PW4

Rajesh Kumar in the whole story is a planted case is rejected

being devoid of any force for the reasons hereinafter

mentioned. We have carefully perused testimony of PW4

Rajesh Kumar. PW4 has stated in positive manner that

accused persons 1 to 3 were present in the court yard of

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liquor shop and accused persons were consuming liquor near

the patrol pump. PW4 has specifically stated in positive

manner that co-accused Roshan picked up quarrel with him

without any rhyme and reason and he asked co-accused

Roshan Lal to keep away. PW4 Rajesh Kumar has stated in

positive manner that thereafter co-accused Kamal Dev asked

him as to why he was quarreling with his friend co-accused

Roshan Lal. PW4 has specifically stated in positive manner

that thereafter deceased Rajneesh saved him from accused

persons and asked him to return to his house in his Tavera

vehicle. PW4 has specifically stated that thereafter he came in

Tavera vehicle to petrol pump for fuel. PW4 has stated in

positive manner that co-accused Roshan Lal was in possession

of scythe and handle thereof was visible to him. There is

positive evidence on record that PW4 informed the incident to

Pradeep Kumar Pradhan of gram panchayat on his mobile

phone. PW2 Pradeep Kumar pradhan has corroborated the

testimony of PW4 Rajesh Kumar. PW2 Pradeep Kumar has

specifically stated in positive manner that on dated

10.10.2008 at about 9 PM PW4 Rajesh Kumar has

telephonically informed on his mobile phone that accused

persons have picked up quarrel with him in the court yard of

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liquor shop in the area of Chalet. It is proved beyond

reasonable doubt that PW4 has immediately reported the

matter to PW2 Pradeep Kumar pradhan of the gram panchayt.

23. Submission of learned Advocate appearing on

behalf of co-appelllant Kamal Dev that incident took place at

the spur of moment and there was no intention to kill

deceased Rajneesh and on this ground appeal be accepted is

rejected being devoid of any force for the reasons hereinafter

mentioned. There is no positive evidence on record in order to

prove that incident took place at the spur of moment. Plea of

co-appellant Kamal Dev that incident took place at the spur of

moment is defeated on the concept of ipse dixit (Assertion

made without proof). There is no evidence on record that

deceased had given any provocation to accused persons at

any point of time. Provocation on the part of deceased in

present case is not proved on record in any manner.

(2) Finding in Criminal Appeal No. 34 of 2010 titled Kapil Dev

Vs. State of HP___________________________________________

.

24 Submission of learned Advocate appearing on

behalf of co-appellant Kapil Dev that prosecution witnesses

are co-related and hail from same area and conviction cannot

be sustained and on this ground appeal be accepted is

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rejected being devoid of any force for the reasons hereinafter

mentioned. We are of the opinion that all prosecution

witnesses are natural witnesses of the incident. It was held by

Hon’ble Apex Court of India in case reported in

AIR 1977 SC 472

titled Mst. Dalbir Kaur and others Vs. State of Punjab

that close

relatives who on the circumstances of case are very natural

witnesses are not an intereste d witness. It was held by

Hon’ble Apex Court of India in case reported in

AIR 1976 SC

2499 titled Molu and others Vs. State of Haryana

that mere fact

that witnesses were close relatives is not sufficient to discard

them.

Also see AIR 1975 SC 2304 titled Sarwan Singh and others Vs.

State of Punjab

.

25. Submission of learned Advocate appearing on

behalf of co-appellant Kapil Dev that investigation in the case

is most unfair and biased and conviction cannot be sustained

is rejected being devoid of any force for the reasons

hereinafter mentioned. There is no positive, cogent and

reliable evidence on record in order to prove that investigating

officer has hostile animus against co-appellant Kapil Dev at

any point of time. Co-accused Kapil Dev did not lead any

evidence on record in order to prove that investigating officer

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has hostile relation with co-appellant Kapil Dev at any point of

time in present case.

26. Submission of learned Advocate appearing on

behalf of co-appellant Kapil Dev that prosecution has failed to

bring home the guilt of co-appellant Kapil Dev beyond

reasonable doubt is rejected being devoid of any force for the

reasons hereinafter mentioned. We have carefully perused

oral as well as documentary evidence placed on record. It is

proved on record that co-appellant Kapil Dev was seen lastly

in the company of deceased Rajneesh and thereafter only

dead body of deceased was found which was homicidal in

nature and injuries were inflicted upon deceased with sharp

edged weapon upon his neck and time between death and

injury was between 5 to 10 minutes. It is also proved on

record that deceased had also resisted homicidal attack and

he had sustained injuries upon his both hands with sharp

edged weapon. As per disclosure statement given by co-

appellant Kapil Dev involvement of co-appellant Kapil Dev is

proved beyond reasonable doubt in present case relating to

death of deceased keeping in view the reasons mentioned in

paras Nos. 11 to 18 of judgment. Reasons are not repeated

again in order to avoid repetition in present case.

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27. Submission of learned Advocate appearing on

behalf of co-appellant Kapil Dev that there is material

contradictions and improvements in the testimonies of

prosecution witnesses and on this ground appeal be accepted

is also rejected being devoid of any force for the reasons

hereinafter mentioned. We have carefully perused entire

testimonies of oral witnesses produced by prosecution. There

is no material contradiction and improvement in the

testimonies of prosecution witnesses which goes to the root of

case. It is well settled law that minor contradictions are bound

to come in criminal case when statement of prosecution

witnesses recorded after a gap of sufficient time. In the

present case incident took place on the intervening night of

10

th

/11

th

October 2008 at village Chalet and statement of

prosecution witnesses recorded on dated 6.7.2009, 7.7.2009,

8.7.2009, 9.7.2009, 10.7.2009, 13.7.2009, 31.8.2009,

9.9.2009 and 30.10.2009 after a gap of sufficient time. It is

well settled law that minor contradictions in criminal case

should be ignored when testimony of prosecution witnesses is

recorded after a gap of sufficient time.

See 2010 (9) SCC 567

titled C.Muniappan and others Vs. State of Tamil Nadu. See AIR 1972

SC 2020 titled Sohrab and another Vs. The State of Madhya Pradesh,

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see AIR 1985 SC 48 titled State of UP Vs. M.K.Anthony, see AIR 1983

SC 753 titled Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat, see

AIR 2007 SC 2257 titled State of Rajasthan Vs. Om Parkash, see 2009

(11) SCC 588 titled Prithu Chand and another Vs. State of HP, see

2009 (9) SCC 626 titled State of UP Vs. Santosh Kumar and others,

see AIR 2009 SC 151 titled State Vs. Saravanan and another, see AIR

1988 SC 696 titled Appabhai and another Vs. State of Gujarat, see

AIR 1999 SC 3544 titled Rammi Vs. State of M.P, see 2000(1) SCC

247 titled State of H.P. Vs. Lekh Raj and another, see 2004 (10) SCC

94 titled Laxman Vs. Poonam Singh and others also See 2004 (7) SCC

408 titled Dashrath Singh Vs. State of UP. See 2012 (10) SCC 433

titled Kuriya and another Vs. State of Rajasthan.

28. Submission of learned Advocate appearing on

behalf of co-appellant Kapil Dev that FSL reports did not

tender as per provisions of law and are inadmissible and the

laboratory that had tested the articles is not fully equipped to

test such contraband is rejected being devoid of any force for

the reasons hereinafter mentioned. Reports of chemical

analyst are admissible under Section 293 of the Code of

Criminal Procedure. It was held in case reported in

1997 (2)

crimes 648 titled M/s Visakha Agro Chemicals (P) Ltd and others Vs.

Fertilizer Inspector-cum-Assistant Director of Agriculture

Visakhapatnam and another

that Court has to accept the report

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issued under Section 293 Cr.PC as valid evidence without

examining the author of report. Co-appellant Kapil Dev did

not file any application before learned trial Court for

examination of officials who have submitted chemical analyst

report in present case.

29. Submission of learned Advocate appearing on

behalf of co-appellant Kapil Dev that disclosure statements

are legally inadmissible in evidence and are in violation of

Article 20 (3) of Constitution of India and all the alleged

recoveries have been made by investigating agency illegally

and not admissible in law is also rejected being devoid of any

force for the reasons herein after mentioned. We have

carefully perused disclosure statement given by co-appellant

Kapil Dev under Section 27 of Indian Evidence Act. We have

carefully perused recovery memos prepared by investigating

officer. Disclosure statement given by co-appellant Kapil Dev

is proved by way of marginal witnesses and even recovery

memos are proved in accordance with law. Hence it is held

that there is no illegality in the disclosure statement recorded

by investigating officer in present case. It is held that recovery

memos are also prepared in accordance with law in present

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case. It is held that there is no violation of Article 20(3) of the

Constitution of India.

30. Submission of learned Advocate appearing on

behalf of co-appellant Kapil Dev that incriminating documents

which were not put to co-appellant Kapil Dev in his statement

recorded under Section 313 Cr.PC. is also rejected being

devoid of any force for reasons hereinafter mentioned. We

have carefully perused statement of co-appellant Kapil Dev

recorded under Section 313 Cr.PC by learned trial Court. We

are of the opinion that learned trial Court put all incriminating

questions to co-appellant Kapil in the present case.

31. Submission of learned Advocate appearing on

behalf of co-appellant Kapil that genesis of the incident, the

place of incident and the manner in which the incident took

place is not established by cogent and credible evidence

beyond reasonable doubt against co-appellant Kapil in present

case and on this ground appeal be accepted is rejected being

devoid of any force for the reasons hereinafter mentioned.

The genesis of the incident is proved on record as per oral and

documentary evidence placed on record by prosecution and

even manner in which the incident took place is also proved

by prosecution by way of leading oral as well as documentary

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evidence placed on record in view of the reasons mentioned in

paras 11 to 18 of judgment and same are not reproduced

again in order to avoid repetition in present case.

Finding in Criminal Appeal No. 142 of 2010 titled Roshan Lal Vs.

State of HP___________________________________________.

32. Submission of learned Advocate appearing on behalf of co-appellant Roshan Lal that PW4 Rajesh Kumar had taken away vehicle of deceased and he did not bother to inform the father of deceased from 9 PM till next morning and

details of mobile calls of PW1, PW2 and PW4 were not

collected by prosecution and on this ground appeal be

accepted is rejected being devoid of any force for the reasons

hereinafter mentioned. It is proved on record that PW4 Rajesh

Kumar has informed the incident to PW2 Pradeep Kumar

Pradhan of the area through his mobile phone. PW2 when

appeared in witness box has specifically stated in positive

manner that PW4 had informed him about quarrel through

mobile phone during night period.

33. Submission of learned Advocate appearing on

behalf of co-appellant Roshan Lal that disclosure statement

under section 27 of Indian Evidence Act in present case has no

evidentiary value and the same has been procured under

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pressure and have been supported by interested witnesses

only and on this ground appeal be accepted is rejected being

devoid of any force for the reasons hereinafter mentioned.

There is no evidence on record in order to prove that

disclosure statement of co-accused Roshan Lal procured under

pressure. Disclosure statement of accused persons recorded

under section 27 of Indian Evidence Act in accordance with

law and proved by way of testimony of marginal witness.

34. Submission of learned Advocate appearing on

behalf of co-appellant Roshan Lal that role of PW4 Rajesh

Kumar was required to be investigated along with phone

details of the father of deceased and phone details of PW2

Pradeep Kumar Pradhan of gram panchayat and on this

ground appeal be accepted is also rejected being devoid of

any force for the reasons hereinafter mentioned. It is well

settled law that facts can be proved by way of two modes (1)

Oral evidence (2) Documentary evidence. As per section 59 of

Indian Evidence Act 1872 facts can be proved by way of oral

evidence. Prosecution has examined 23 oral witnesses. Facts

of the case asserted by prosecution are proved by way of

testimony of oral witnesses produced by prosecution beyond

reasonable doubt. Testimony of oral evidence is also

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corroborated by documentary evidence placed on record

mentioned in paras supra. Same are not repeated in order to

avoid repetition in present case.

35. Submission of learned Advocate appearing on

behalf of co-appellant Roshan Lal that PW4 Rajesh Kumar has

failed to explain as to how he saw scythe in the bag owned by

co-appellant Roshan Lal and on this ground appeal filed by co-

appellant Roshan Lal be accepted is rejected being devoid of

any force for the reasons hereinafter mentioned. PW4 Rajesh

Kumar has specifically stated when he appeared in witness

box that co-accused Roshan Lal was in possession of one bag

and scythe was in the bag and handle of the sickle was visible

to him. Above stated facts as per testimony of PW4 proved

beyond reasonable doubt. Above stated facts remain un-

rebutted on record. Even as per medical evidence placed on

record ante mortem injuries found upon body of deceased

were possible with scythe placed on record. The size of scythe

is proved as per sketch Ext PW9/A placed on record and the

size of the scythe was 55 cm. The length of handle was 27 cm

and length of sharp edged weapon was 28 cm and breadth of

the scythe was 4 cm and human blood of deceased group ‘A’

was found upon scythe which was used for the commission of

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offence as per chemical analyst report placed on record. Even

photographs placed on record clearly proved beyond

reasonable doubt that brutal ante mortem injuries upon

deceased were caused with sharp edged weapon.

36. Submission of learned Advocate appearing on

behalf of co-appellant Roshan Lal that judgment and sentence

passed by learned trial Court is based on conjectures and

surmises and learned trial Court did not properly appreciate

oral as well as documentary evidence placed on record and on

this ground appeal filed by co-appellant Roshan Lal be

accepted is rejected being devoid of any force for the reasons

hereinafter mentioned. We have carefully perused oral as well

as documentary evidence placed on record. It is held that

learned trial Court has properly appreciated oral as well as

documentary evidence placed on record and it is held that no

mis-carriage of justice is caused to appellants. Concept falsus

in uno falsus in omnibus is not applicable in criminal law.

See.

AIR 1980 SC 957 titled Bhe Ram vs. State of Haryana. See AIR 1971

SC 2505 titled Rai Singh vs. State of Haryana.

It is well settled law

that conviction can be based on the evidence of single witness

in criminal case if testimony of single witness is trustworthy

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and reliable.

See AIR 1973 SC 944 titled Jose vs. State of Kerala.

Point No.1 is answered in negative.

Point No.2 (Final order).

37. In view of findings upon point No. l Criminal

Appeal No. 14 of 2010 titled Kamal Dev Vs. State of HP,

Criminal Appeal No. 422 of 2011 titled Kamal Dev Vs. State of

HP, Criminal Appeal No. 34 of 2010 titled Kapil Dev Vs State of

HP and Criminal Appeal No. 142 of 2010 titled Roshan Lal Vs.

State of HP are dismissed. Judgment and sentence passed by

learned trial Court are affirmed. Certify copy of judgment be

placed in Criminal Appeal No. 34 of 2010, Criminal Appeal No.

422 of 2011 and Criminal Appeal No. 142 of 2010. File of

learned trial Court along with certify copy of judgment be sent

back forthwith. Criminal Appeal No. 14 of 2010, Criminal

Appeal No. 422 of 2011, Criminal Appeal No. 34 of 2010 and

Criminal Appeal No. 142 of 2010 stand disposed of. Pending

application(s) if any also disposed of.

(Sanjay Karol),

Judge

December 22,2015 (P.S. Rana)

(ms/R). Judge

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