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

Cr. Appeal No. 332 of 2008.

Reserved on: 19.09.2014.

Date of Decision :09.10.2014.

State of Himachal Pradesh …..Appellant.

Versus

Ajay Kumar and others

…..Respondents.

Coram

The Hon’ble Mr. Justice Rajiv Sharma, Judge.

The Hon’ble Mr. Justice Sureshwar Thakur, Judge.

Whether approved for reporting? Yes.

For the Appellant: Mr. Ashok Chaudhary, Addl.

Advocate General.

For the Respondents: Mr. G.R. Palsra and Mr.

T.S.Chauhan, Advocates.

________________ ___________________________

Sureshwar Thakur, Judge

The instant appeal is directed by the State,

against the impugned judgment, rendered on 8.1.2008 by the

learned Sessions Judge, Mandi, Himachal Pradesh in Sessions

Trial No. 23 of 2007, whereby, the learned trial Court

acquitted the accused/respondents for theirs having

committed an offence under Section 302 read with Section 34

IPC.

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2. Brief facts, of the case are that complainant Om

Chand is the father of deceased Yadav Singh @ Sanjay. His

son was working as driver in PWD in Lauhal area prior to his

death. He came home on 19.10.2006 and on the morning of

20.10.2006 he had gone to collect the sale consideration of

Alto Car which had sold to one Bitu about two months back.

Sanju reached home at about 7.45 p.m from Sundernagar. At

about 8.30 p.m. his son received a call on his mobile and

thereafter he left the house telling his father that he would

come soon. Sanju did not come at night and the complainant

thought that his son had stayed at the house of his Mausi.

Lateron a telephone call was received by Harish (PW-12)

younger son of the complainant on his mobile that somebody

has picked up quarrel with his brother Sanju. However, he

did not tell about this to his father Om Chand. Next day i.e.

on 22.10.2006 at 7 p.m. a telephonic call was received by his

nephew Kirnu from Mohindru of village Badyar that a dead

body was lying near the bushes by the side of the road and

the complainant should verify the same. Thereafter

complainant alongwith 4/5 persons went in a car to village

Badyal and found the dead body lying in the bushes. In the

meantime Pradhan of Gram Panchayat Badyar had informed

the police and the police also arrived at the spot and

examined the dead body. They noticed injury marks on the

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dead body. Statement of complainant Om Chand under

Section 154 Cr.P.C was recorded on the basis of which FIR Ex.

PP was registered. PW-19 SHO Hemant Kumar took the

photographs Ex. PW-6/1 to 20 and thereafter he filled up the

inquest papers vide Ex. PB. Vide memo Ex. PC articles lying

near the dead body were taken into the possession. Site plan

Ex. PY of the place where the dead body was lying also

prepared. Statements of the witnesses were recorded. The

accused were arrested on 22.10.2006. On 24.10.2006 the

disclosure statement of accused Ajay was recorded. On the

basis of disclosure statement made by accused, Darat Ex. P-2

was recovered from his cowshed and the same was taken into

possession vide memo Ex. PG in the presence of the

witnesses. The site plan of place of recovery is Ex. PG/1. The

disclosure statement of accused Manoj Kumar Ex. PF was also

recorded. On the basis of which police got recovered sickle

Ex. P-3 vide Ex. PH. The site plan of place of recovery is Ex.

PH/1. Mobile phone of the associates of the deceased were

also taken into possession vide memo Ex. PAC. On the

disclosure statement of accused Yogesh Kumar Ex. PJ, danda

Ex. P4 was recovered from the kitchen of his house. The

same was taken into possession vide memo Ex. PK and site

plan of place of recovery Ex. PK/1 was prepared. The house

of father of accused Manoj kumar was searched under memo

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Ex. PAD. Similarly house of Pawan Kumar was also searched

under memo Ex. PA and Kudali Ex. P-7 was recovered. The

dimension of the Kudali Ex. P-7 was taken; memo in this

regard is Ex. PR. On application Ex. PU, PW-16 has

conducted the post mortem and issued a post mortem report

comprised in Ex. PV. In his opinion, the cause of death was

injury to heart and brain but mainly to the heart. During the

course of investigation, the doctor examined the accused Ajay

Sharma and noticed three injuries. He has issued MLC Ex.

PO and opined that injury No.1 is possible with grip having

sharp edged weapon.

3. On completion of the investigation, into the

offence, allegedly committed by the accused, report under

Section 173 Cr.P.C was prepared and filed in the Court.

4. The accused were charged for theirs having

committed an offence punishable under Section 302 read with

Section 34 IPC, by the learned trial Court, to which they

pleaded not guilty and claimed trial. In order to prove its

case, the prosecution examined 19 witnesses. On closure of

the prosecution evidence, the statements of the accused

under Section 313 of the Code of Criminal Procedure, were

recorded in which they pleaded innocence and claimed false

implication.

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5. On appraisal of the evidence on record, the

learned trial Court returned findings of acquittal in favour of

the accused.

6. The State of H.P. is aggrieved by the judgment of

acquittal recorded by the learned Trial Court in favour of the

accused/respondents. Mr. Ashok Chaudhary, the learned

Additional Advocate General has concertedly and vigorously

contended, that the findings of acquittal recorded by the

learned trial Court below are not based on a proper

appreciation of the evidence on record rather, they are

sequelled by gross mis-appreciation of the material evidence

on record. Hence, he, contends that the findings of acquittal

be reversed by this Court in the exercise of its appellate

jurisdiction and be replaced by findings of conviction and

concomitantly, an appropriate sentence be imposed upon the

accused/respondent.

7. On the other hand, the learned defence counsel

has with considerable force and vigour contended that the

findings of acquittal recorded by the Court below are based on

a mature and balanced appreciation of the evidence on record

and do not necessitate interference, rather merit vindication.

8. This Court with the able assistance of the learned

counsel on either side, has with studied care and incision,

evaluated the entire evidence on record.

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9. The alleged occurrence took place on the night of

21.10.2006. In the said occurrence, deceased Sanjay @

Yadav is alleged to have been assaulted by the accused with

Drat, Danda and sickle, etc., for avenging the previous

altercation interse him and accused Ajay Kumar at the shop of

Kaku chicken vendor. The occurrence aforesaid preceding the

alleged occurrence is alleged to have taken place on

21.10.2006 at 8.00 p.m in the presence of Ashok Kumar (PW-

6) and (PW-5) Yuvraj. Besides, accused Ajay Kumar who

allegedly sustained injuries caused by the deceased reported

the matter to the police, comprised in Ext.PL. Consequently,

on the score of accused Ajay Kumar hence nursing a motive

to avenge the injuries inflicted upon him by the deceased

Sanjay Kumar on 21.10.2006 at 8.00 p.m., as such, with the

motive reared by him he is alleged to have done to death

deceased Sanjay Kumar. The deposition of PW-1 Om Chand,

father of the deceased as also the complainant, though does

not render a vivid ocular version qua the incident, yet it

elucidates the factum of on 21.10.2006 at 7.45 p.m., when

deceased Sanjay arrived home at 8.30 p.m., his having

received a call over his mobile which led him to leave home

with an intimation PW-1 that he would return home soon.

However, though deceased Sanjay Kumar had intimated to

PW-1 on his departure from home of his intending to return

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home soon, however, he did not return. Nonetheless, the

brother of the deceased, Harish Kumar (PW-12) did receive a

call divulging the fact of somebody having had an altercation

with the deceased. In the morning of the succeeding day, at

7.20 a.m., one Mahindru is deposed to have made a call to

Kirnu, nephew of complainant Om Chand, disclosing therein

that a dead body was lying near the pump house in the

bushes. The intimation aforesaid, led PW-1 alongwith his

nephew Sanju, Kiran Kumar and Raj Kumar to leave for the

spot, where they found the dead body of Sanjay. It is

apparent on a reading of the testimony of PW-1 that PW-12

Harish Kumar remained home throughout the night of

21.10.2006. However, a disclosure qua the incident which

took place on the previous night was yet not made by PW-12

to PW-1. Obviously, perse when PW-12 remained home

throughout the night of 21.10.2006, he, was ill-equipped as

well as disempowered to make a disclosure or reveal the

details of the incident which took place then. Concomitantly,

then any disclosure made by PW-12 to PW-1 about any

incident which took place on 21.10.2006 cannot acquire any

tenacity.

10. Even otherwise, the inculpatory role, as attributed

to the accused by the prosecution fades in the face of PW-1

having not disclosed in his statement comprised in Ext.P-1,

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the names of any of the accused even in the face of a vivid

disclosure enumerating the details of the incident which

occurred on the night preceding the recovery of the body of

the deceased having been disclosed to him by PW-12.

Consequently, an apt inference which flows is that both PW-

12 and PW-1 were unaware of the identity of the accused.

In sequel, it has to be concluded that the learned trial Court

while according weight to the said factum and its prodding it

to conclude that the identity hence of the accused who had

assaulted the deceased and caused his death had remained

un-established, does not suffer from any perversity or

absurdity of mis-appreciation of evidence on record.

11. Even an advertence to the testimony of PW-12 is

significant. He in his examination-in-chief has deposed that

on 21.10.2006 at 8.00 or 8.15 p.m. he received a telephonic

call from Yuvraj from Behna that a quarrel had taken place

with his deceased brother at Badyal, which led PW-12 to leave

for Badyal on a scooter. On his arriving at Badyal, PW-12

found Ghan Shyam, Om Prakash and deceased Sanju

quarrelling with each other. However, he interceded and

separated them. He continues to depose that Yuvraj inquired

from accused Ajay about the telephone number of Kaku

Chicken Vendor and Ajay apprised him that he was not aware

of the said number. He deposed that there was again an

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altercation interse the two and he separated them. He also

admitted that fact that his deceased brother Sanju gave a

blow on the face of Ajay and the former apologized to Ajay for

his mis-demeanor. He deposes that he alongwith Sanju,

Ghanshyam and Yuvraj when had arrived near the Pump

house, then from behind Ajay, Yogesh and Manoj also arrived

there. Accused Ajay has been deposed to be carrying a

weapon like Darat, accused Yogesh has been deposed to be

carrying sickle and accused Manoj has been deposed to be

carrying a Danda. Though, he deposes that he concerted to

intercede and repulse the assault, however, to no avail.

Accused Ajay has been deposed to have chased Sanju on the

road and he deposes his having heard cries of Sanju ‘Bhag

Gaya’. Subsequently, he deposes that he alongwith the above

associates came towards Behna and Ghanshyam left him on

the way. On reaching home he found that deceased Sanju

was not there. He has also deposed that he alongwith Yuvraj

went to Bedyal on scooter to search for Sanju and made a

telephonic call on his mobile, which remained unanswered.

Lastly, he deposes that he went to bed at 9.30 p.m and

omitted to disclose the entire incident to Om Chand PW-1.

12. The deposition of the brother of the deceased PW-

12 Harish Kumar comprised in his examination-in-chief, has

not got to be accepted at its face value. For unearthing the

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truth of his deposition, it is imperative for this Court to

incisively discern and also read his testimony comprised in his

cross-examination so as to look for existence therein of any

embellishments or improvements arising from omission on the

part of PW-12 to previously state before the police the facts

deposed by him during his examination-in-chief. Only in case

his testimony is read in a wholesome manner and its omitting

to unravel interse contradictions or intrase contradictions vis-

à-vis his previous statement recorded in writing would

credibility be hence imputed to the deposition of PW-12. An

incisive reading of the testimony of PW-12 comprised in his

cross-examination unveils the factum of this witness having

deposed certain facts in his examination-in-chief which were

omitted to be stated by him to the police in his statement

recorded under Section 161 Cr.P.C. Obviously, facts deposed

for the first time in Court by PW-12 during the course of

recording of his examination-in-chief, obviously when omitted

to be stated to the police earlier, constitute embellishments

and improvements rendering his testimony qua the facts

deposed for the first time in Court to be disempowered to

attain sanctity. The facts which have been deposed by PW-

12 for the first time in Court and which render them to be

acquiring the taint of improvements and embellishments are

(a) omission in the previous statement of PW-12 made to the

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police of a telephonic call having been made by Yuvraj from

Behna and of his having not stated to have gone to Badyal

where Yuvraj, Sanju and Ghanshyam met to him. (b) Lack of

occurrence in his previous statement recorded under Section

161 Cr.P.C. comprised in Mark-D of deceased Sanju having

assaulted accused Ajay on his face in his presence and of an

apology having been made by the deceased to Ajay, (c) lack

of narration in his previous statement comprised in mark-D of

all the three accused leading a crowd of 30 to 35 persons

including the family members of the accused. (d) Omission to

narrate in his previous statement that accused Manoj was

carrying Danda (Ext.P-4) and sickle (Ext.P-3) was wielded by

accused Yogesh. (e) Reticence in his previous statement

comprised in Mark-D that owing to Diwali festival, he omitted

to disclose the details of the incident to his family members.

Lack of occurrence in the previous statement of PW-12

comprised in Mark-D of facts aforesaid existing in his

examination-in-chief while for reiteration comprising

improvements and embellishments, hence rendering his

testimony to be imbued with falsity, are grave, pervasive and

immense. They unstrip and unshred the veracity of the

version qua the incident deposed by PW-12 in his

examination-in-chief. As a concomitant, the prosecution

version anvilled upon the deposition of PW-1 and PW-12 is

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wholly infected with the vice of untruthfulness, concoction and

invention, on which no reliance can be placed by this Court.

13. A perusal of the deposition of PW-5 Yuvraj, the

person who was purportedly accompanying PW-12 at the

material time while omitting to unravel the fact of his having

recognized accused Yogesh and Manoj in the crowd owing to

darkness, while comprising an intra-se contradiction vis-à-vis

the deposition of PW-12 who, however, has attributed an

inculpatory role to both aforesaid, hence renders imbued with

the vice of prevarication, the testimonies of both PW-5 and

PW-12. Besides it renders untruthful of both having

purportedly gathered at the site of the occurrence. For lack of

existence of harmony and consistency interse the testimonies

of PW-5 and PW-12 qua the genesis of the prosecution case

then an apt and ready inference which ensues, is, that hence

when both were not together at the site of occurrence then

too the concomitant deduction which spurs, is that both are

rendering a concocted and manufactured version qua the

incident, which cannot gain credence with this Court.

14. The deposition of PW-6 omits to lend support to

the prosecution case. Besides the scanning of the testimony

of PW-4 Ghanshyam underscores the factum of his having not

lent support to the prosecution case. He during the course of

his cross-examination by the learned Public Prosecutor on his

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having come to be declared hostile feigns ignorance qua the

presence of the accused in the crowd as also with his having

deposed that he did not perceive any Danda wielded by any

member of the crowd renders his testimony to be rendering

no support or succor to the prosecution version. A perusal of

the testimonies of the witnesses aforesaid whose depositions

were relied upon by the learned Additional Advocate General

to canvass before this Court that hence the charge against the

accused stood convincingly established and proved, does

rather as aptly concluded by the learned trial Court constrain

a conclusion, that their testimonies are infirm and discrepant,

ridden with improvements and embellishments vis-à-vis their

previous statements recorded in writing, besides theirs turning

hostile and hence not rendering support to the prosecution

case, renders the prosecution case to capsize.

15. Even the deposition of PW-16 the doctor who

conducted the post mortem examination on the body of the

deceased omits to give strength to the prosecution version

inasmuch, as, (a) on weapons of offence, purportedly wielded

by the accused with which the purported lethal blow was

delivered on the person of the deceased being Darat, Kudali,

Drati and Lathi, when shown to this witness and perceived to

be having blunt and broken edges at places and not sharpen

enough to cause injuries noticed by him on the body of the

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deceased (b) his having unequivocally voiced that the sharp

injury is not possible with blunt weapon like Lathi. In sequel,

his testimony unfolds the fact of the user of none of the

weapons shown to this witness being the cause of the injuries

as noticed by PW-16 on the body of the deceased while

conducting his post mortem examination. However, Ext.P-21

Kudal, the weapon of offence, purportedly used by the

accused for purportedly assaulting the deceased was

introduced by the prosecution/Investigating Officer and shown

to PW-16 during the course of the recording his testimony.

On Ext.P-21 being shown to PW-16, it sequelled elicitation of

an opinion of PW-16 that Injury No. 3 as elucidated in his post

mortem report Ext.PB is possible with its user. Consequently

on strength of the opinion rendered by PW-16 on Ext.P-21 on

its having been shown to the former during the course of his

examination-in-chief an empathic argument, is, concerted to

be built by the learned Additional Advocate General, that,

hence the prosecution has been able to clinch the factum of

the inculpation of the accused, in the commission of the

offence alleged against them. However, the said argument, is,

bereft of any force or vigour, inasmuch, as (a) the

introduction of Ext.P-21 Kudal is not preceded by preparation

of a disclosure statement or a recovery memo in consequence

to its recovery thereof having been made at the instance of

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the accused, for rearing open an inference that hence even

when it was shown to PW-16 during the course of the

recording of his examination-in-chief it was an efficacious

weapon of offence wielded and used by the accused for

perpetrating the assault on the deceased. Lack of evidence

portraying the factum of its purported recovery at the

instance of the accused in succession to a disclosure

statement qua the fact of its place of hiding or concealment

musters the conclusion that its introduction by the

prosecution, is, tainted and besmirched. Consequently, it is

an unworthwhile introduction which carries no force in the

eyes of law. Also then any opinion rendered by PW-16 qua its

having begotten the Injury No. 3, is not edificatory. (b) Even

assuming that any injury which purportedly led to the demise

of the deceased was sequelled by the user at the instance of

the accused of Kudal Ext.P-21 yet with the entire thrust and

weight of the oral evidence qua the occurrence being ridden

with a plethora of improvements and embellishment as well as

blatant interse and intra se contradictions in the testimonies

of the prosecution witnesses, as such, discounting the very

fact of the occurrence as portrayed by the prosecution to have

taken place, strips of in its entirety the factum of user of

Ext.P-21, if any, by the accused for perpetrating the assault

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on the person of the deceased, which assault ultimately led to

his death.

16. As such, the impugned judgment does not suffer

from any vice, absurdity or perversity of mis-appreciation or

non appreciation of evidence. Consequently, reinforcingly, it

can be formidably concluded that the findings of the learned

trial Court are based on a mature and balanced appreciation

of evidence on record and do not merit interference.

17. In view of the above discussion, we find no merit

in this appeal which is accordingly dismissed and the

judgment of the learned trial Court is affirmed and

maintained. Record of the learned trial Court be sent back

forthwith.

(Rajiv Sharma)

Judge

9

th

October, 2014

. (Sureshwar Thakur)

(TM/Jai) Judge

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