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Himachal Pradesh High Court · body

2012 DIGILAW 470 (HP)

State of Himachal Pradesh v. Narinder Kumar

2012-08-29

R.B.MISRA, RAJIV SHARMA

body2012
JUDGMENT : Rajiv Sharma, J. State has come in appeal against the judgment of the learned Additional Sessions Judge (I), Kangra at Dharamshala rendered in Sessions Case No. 37-P/2003 whereby respondents, who were charged with and tried for offences punishable under sections 302, 201, 120-B, 147, 148, 149, 364, 323, 324 of the Indian Penal Code, have been acquitted on 2.3.2004. 2. Case of the prosecution, in a nutshell, is that Santosh Kumar left for his house on his scooter at 9.30 P.M. on 17.6.2003 with Manoj Kumar. When they reached at Patti, Manjeet Pathania met them. They noticed some persons standing on the road when they reached near Pantehar Band Bihar Chowk. They were drunk. They were requested to give passage. But they did not oblige. These persons started beating Manjeet. The persons who gave beatings left the place and came back again. These persons were accompanied by Nrinder, Vinod Kumar, Partap Kumar and Santosh. They came in a vehicle. They started beating PW-1, PW-2 and Manoj. Manoj was hit with stone by Naresh. PW-1 was also forcibly taken to the house of Narinder. He was confined in a room. Manjeet and Manoj were left on the spot in injured condition. PW-2 came to know that Manoj has not reached his house. Thereafter, they started searching for Manoj. He was not traceable. In these circumstances, F.I.R. was registered. PW-1 Santosh Kumar and PW-2 Manjeet were also medically examined. Investigation was carried out by PW-18 Balbir Singh Patial. He has got the injured medically examined from Dr. Arvind Bhan (PW-8). He also got the postmortem conducted on the body of Manoj Kumar. He prepared the site plan. He received the reports of the Chemical Examiner Ex. PA and PB. The investigation was completed and the challan was put up after completing all the codal formalities. 3. The prosecution has examined 18 witnesses in all. Statements of accused under section 313 were recorded. The case of the accused is of simpliciter denial. The trial court has acquitted the accused on 20.3.2004. It is in these circumstances, the State has filed the present appeal. 4. Mr. R.K. Sharma, learned Sr. Additional Advocate General has vehemently argued that the prosecution has proved its case against the accused. According to him, the trial court has not correctly appreciated the oral as well as documentary evidence. 5. Mr. Jagdish Vats and Mr. It is in these circumstances, the State has filed the present appeal. 4. Mr. R.K. Sharma, learned Sr. Additional Advocate General has vehemently argued that the prosecution has proved its case against the accused. According to him, the trial court has not correctly appreciated the oral as well as documentary evidence. 5. Mr. Jagdish Vats and Mr. Anup Chitkara have supported the judgment of acquittal. 6. We have heard the learned counsel for the parties and have perused the records carefully. 7. PW-1 Santosh Kumar testified that at about 9.30 P.M. on 17.6.2003, he left for his house on a scooter with Manoj Kumar (deceased). When they reached at Patti, Manjeet Pathania (PW-2) met them. He was also coming on his scooter. When they reached Pantehar near Band Bihar Chowk, they noticed some people standing on the road. They were drunk. Manjeet blew horn of the scooter but they did not give passage. Thereafter, these persons caught hold of Manjeet and started thrashing him. These persons were not known to them since they were strangers. Thereafter, the persons who gave beating to Manjeet left the place and they stayed back. In the meantime, accused Naresh, Narinder, Vinod Kumar, Partap Kumar, Santosh and some of the persons, who were not known to them came on the spot. They got down from the vehicle and pounced upon Manjeet and Manoj. He tried to run away from the spot. He was also caught and was given thrashing. Manjeet was given beatings by Narinder, Vinod Kumar and Naresh Kumar. Manoj Kumar was beaten up by Naresh and some two other persons, whose names he did not know. Manoj Kumar was given stone blow on his head by Naresh. He was taken in a vehicle to the house of accused Narinder and was given beating. He was confined in a room. One of the accused Sudesh Kumar was also present there. Manjeet and Manoj were left in injured condition on the spot. He came to know next day that Manoj Kumar has not reached his house. Thereafter, they started searching for Manoj. He was not traceable. Thereafter, F.I.R. was registered. He was medically examined vide M.L.C. Ex.PW1-/B. In his cross-examination, PW-1 admitted that Janau ceremony was going on that day in the house of accused Narinder. He was also invited for dinner along-with his entire family members. Thereafter, they started searching for Manoj. He was not traceable. Thereafter, F.I.R. was registered. He was medically examined vide M.L.C. Ex.PW1-/B. In his cross-examination, PW-1 admitted that Janau ceremony was going on that day in the house of accused Narinder. He was also invited for dinner along-with his entire family members. All the villagers took their meals on that evening in the house of Narinder Kumar. Around 250 people took their meal at Narinders house. He has also admitted in his cross-examination that to enter the house of accused Narinder, one has to pass firstly from the courtyard and then from verandah and only then one can enter the house of accused Narinder. He also admitted that even for going out of the house of accused Narinder Kumar one has to come out firstly in the verandah and then through courtyard one can go out. He was confronted with his statement Ex.PW-1/A. It is not stated in F.I.R. Ex.PW-1/A that Naresh Kumar gave stone blow on the head of Manoj. He also admitted that when he was taken from the spot, he was taken through the courtyard and verandah where Janau ceremony was going on. People saw him in injured condition. He has also admitted in his cross-examination that he along-with Manjeet went to the Police Station at about 9.00 A.M. and reported the matter to the police. He has not informed his parents or any person that Manoj sustained injuries. He did not disclose this fact to the parents of Manoj. He further admitted that none of the accused had any enmity with Manoj and Manjeet. 8. PW-2 Manjeet Singh was declared hostile though he was an eye witness of the incident dated 17.6.2003. In his examination-in-chief, he has admitted that he could not identify all the persons who have given beatings to him as they were strangers. He identified only three persons out of 20-25, who again came to the spot, namely, Narinder, Naresh and Vinod Kumar. 9. PW-3 Dwarka Dass has signed the disclosure statement Ex.PW-3/A. It was also signed by Om Parkash in his presence. The police was taken by the accused to Pantehar Chowk and the stone was got recovered, which was taken into possession vide seizure memo Ex.PW- 3/B. In his cross-examination, he has admitted that the stone had no blood stains. 10. PW-4 Jagdish Chand was the Pradhan, Gram Panchayat, Tanda. The police was taken by the accused to Pantehar Chowk and the stone was got recovered, which was taken into possession vide seizure memo Ex.PW- 3/B. In his cross-examination, he has admitted that the stone had no blood stains. 10. PW-4 Jagdish Chand was the Pradhan, Gram Panchayat, Tanda. He was associated by the police in the investigation. He was also declared hostile. PW-5 Sansar Chand was also declared hostile. PW-4 and PW-5 were associated by the police for the identification of the body, which was lying in Kandi. PW-6 Shyam Lal was also declared hostile. 11. PW-7 Dr. Anupma Singh has examined accused Partap Chand and Vinod Kumar and issued MLCs Ex.PW-7/A and PW-7/B. PW-8 Dr. Arvind Bhan has examined PW-1 and PW-2 and issued MLCs Ex.PW- 1/B and PW-2/B. According to PW-8, the injuries on the person of PW-1 were simple and superficial and were minor and similarly the injuries of PW-2 were simple and superficial and were minor and one cannot become unconscious with these injuries. 12. The post mortem of deceased Manoj was conducted by PW-9 Dr. Karan Singh. According to him, Manoj died due to shock and head injury. He has noticed following injury on the body of Manoj Kumar. 1. "Multiple abrasions on the right and forearm, measuring 1 cm x 5 cm in the sorsel aspect, reddish brown of colour. 2. Lacerated wound on the upper lips 3 cm x 2 cm. 3. Lacerated wound 2x2 cm just lateral to the eye brow. 4. Lacerated wound 1 x 2 cm behind right ear. 5. Contusion on the right frontal area and right parietal area. II Cranium And Spine Cord On dissection of scalp Contusion and hemorrhage present in the sub coetaneous tissue. No fracture of the scalp bone present. On opening the scalp mossis sub dural hemorrhage fronto parietal area on the right side. Brain tissue ademator and congested corresponding to the spinal injuries. Spinal cord Normal. Thorax : NAD Abdomen: Stomach : There was semi digested food. Muscles and bones joints : NAD". 13. PW-9 has issued post mortem report Ex.PW- 9/A. According to him, the head injury noticed during the postmortem on opening the scalp could not be caused without any external injury and if that injury was caused by blunt weapon there was every likelihood of lacerated wound, like stone Ex.P-1. Muscles and bones joints : NAD". 13. PW-9 has issued post mortem report Ex.PW- 9/A. According to him, the head injury noticed during the postmortem on opening the scalp could not be caused without any external injury and if that injury was caused by blunt weapon there was every likelihood of lacerated wound, like stone Ex.P-1. According to him, the head injury sustained by the deceased could be caused in a scuffle fist, kick blows or fall on the ground with force. He has categorically stated that injury noticed on the head of the deceased in all probabilities could not be result of a blow with stone like Ex.P-1. The injury found by fall on a hard surface can be distinguished as injury suffered by a blow by stone. He also admitted that when he conducted the post-mortem of deceased Manoj Kumar, he did not notice any external lacerated wound or incised wound on any head portion of the deceased. He again reiterated in his cross-examination that the head injury noticed on the person of the deceased could not be the result of blow by stone Ex.P-1. 14. The investigation was carried out by PW-18 Inspector Balbir Singh Patial. According to him, F.I.R. Ex.PW-1/A was registered on his dictation by Rajinder Parhania on the statement of Santosh Kumar. The copy of F.I.R was sent to the Illaqua Magistrate, Palampur. Victims Santosh and Manjeet were sent for medical examination. They were examined by PW-8 Dr. Arvind Bhan. He along-with witness Sanjay and accused visited Kandi and dead body of Manoj Kumar was discovered and accordingly it was taken into possession vide memo Ex.PW-4/B. He also sent the dead body of Manoj Kumar for postmortem to S.M.O. Palampur. Stone Ex.P-1 was recovered on the basis of disclosure statement made by accused Naresh Kumar Ex.PW-3/A. The same was taken into possession vide recovery memo Ex.PW-3/B. He also prepared the site plan. The report of Chemical Examiner was received vide Ex. PA and PB. 15. There are material contradictions in the statements made by the prosecution witnesses. The incident has taken place at about 9.30 P.M. Prosecution has not proved that there was sufficient light to enable the witnesses, more particularly, PW-1 and PW-2 to identify the accused. PW-1 Sanjay Kumar has testified that he was given beatings by the accused persons and Manoj Kumar was hit with stone by Naresh Kumar. The incident has taken place at about 9.30 P.M. Prosecution has not proved that there was sufficient light to enable the witnesses, more particularly, PW-1 and PW-2 to identify the accused. PW-1 Sanjay Kumar has testified that he was given beatings by the accused persons and Manoj Kumar was hit with stone by Naresh Kumar. He has deposed that he was taken in a vehicle to the house of Narinder. There were 250 people in the house of Narinder. He has admitted in his cross-examination that to enter the house of accused Narinder one has to pass firstly from the courtyard and then from Verandah and only then one can enter the house of accused Narinder. He has not narrated the incident to any one, who had assembled in the house of Narinder, though according to him, he was seen in injured condition. PW-1 has also not informed the parents that Manoj sustained injuries. It is not mentioned in the F.I.R. that Manoj Kumar was hit with stone by Naresh. PW-2 Manjeet has been declared hostile. His version cannot be believed, though, he has stated that he was given beatings by the accused persons. It has come in the statement of PW-8 that the injuries suffered by Santosh Kumar and Manjeet Pathania were simple and superficial and one could not become unconscious due to these injuries. In the instant case, no identification parade has taken place to identify the accused persons. PW-2, PW-3, PW-4 and PW-5 have been declared hostile. According to the prosecution case, Manoj Kumar died due to stone injury inflicted by Naresh Kumar. It has come in the statement of PW-9 Dr. Karan Singh that the injury could not be caused by the weapon of offence, i.e. stone Ex.P-1. He had no external lacerated wound on any head portion of the deceased. According to him, the injury found by fall on a hard surface can be distinguished as injury suffered by a blow by stone. No blood was found on the stone as per the report of the Chemical Examiner. The recovery of stone is also doubtful as per the evidence led by the prosecution. One of the witnesses, who has signed the disclosure statement, i.e. PW-3 was related to deceased Manoj Kumar. No blood was found on the stone as per the report of the Chemical Examiner. The recovery of stone is also doubtful as per the evidence led by the prosecution. One of the witnesses, who has signed the disclosure statement, i.e. PW-3 was related to deceased Manoj Kumar. In normal circumstances, PW-1 ought to have disclosed the manner in which he, PW-2 Manjeet and Manoj were given beatings to his parents and to the parents of Manoj Kumar. There are improvements made by the prosecution witnesses. There is variance in the contents of F.I.R. and the statements made by the witnesses in the Court. The occurrence has taken place at Patti but the dead body has been recovered from Kandi village. How, the body reached village Kandi has not been explained by the prosecution. Statements of PW-1 and PW-1 are at variance with the statement of PW-9 Dr. Karan Singh. According to PW-1 and PW-2, Manoj Kumar was hit on head by stone. PW-9 Dr. Karan Singh, as noticed above, has categorically deposed that the injury received by Manoj Kumar could not be caused by stone Ex.P-1. PW-2 Manjeet Singh was also allegedly beaten up by the accused as per examination-in-chief. However, in his cross-examination, he has stated that he was thrown from a big stone and he became unconscious and remained unconscious till 3.00 A.M. This statement is at variance with the statement of PW-8 Dr. Arvind Bhan. According to PW-2, he became unconscious. However, according to PW-8 Dr. Arvind, injuries received by him were superficial and he could not become unconscious due to these injuries. The prosecution has not examined independent witnesses though they were available in the house of Narinder Kumar where Janau ceremony was going on. 16. Accordingly, the learned trial court has rightly acquitted the accused persons and this court need not interfere with the judgment of the trial court. 17. Consequently, in view of the observations and discussions made herein above, there is no merit in the appeal and the same is dismissed. Bail bonds are discharged. No costs.