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2012 DIGILAW 515 (HP)

State of Himachal Pradesh v. Parvej Khan @ Lucky

2012-09-06

DEEPAK GUPTA, RAJIV SHARMA

body2012
JUDGMENT Rajiv Sharma, Judge: This appeal by the State is directed against the judgment dated 16.09.2005, passed by the learned Sessions Judge, Bilaspur, Himachal Pradesh in Sessions Trial No. 11 of 2003, whereby the respondents, who were charged with and tried for offence under Sections 302 and 201 read with Section 34 of the Indian Penal Code, have been acquitted. 2. Case of the prosecution, in a nut-shell, is that on 13.07.2002, Shri Sita Ram (PW-2), Up Pradhan, Gram Panchayat, Binola telephonically informed the police that dead body of a person and a scooter was lying below National Highway at Sungal area. SI/SHO entered report No. 11, Ex.-PZ and to verify the information, the SHO alongwith police officials reached the spot. The person was found dead with injuries on his person. Shri Shyam Lal Panwar (PW-1) had also been sent for. Shri Shyam Lal Panwar had identified the dead body that of his son. The statement of Shri Shyam Lal Panwar (PW-1) was recorded vide Ex.-PA. He informed the police that on the intervening night of 12/13.07.2002, his son was not present at his house and has gone out on a Scooter at about 10:00 p.m. after taking his dinner and had not returned. He has also informed that some unknown person has committed the murder of his son and in order to conceal the same, has thrown his dead body and scooted below the National Highway in a steep gradient (dhank). SHO made the necessary endorsement on Ex.-PA and sent the same to Police Station for registration of FIR. FIR Ex. PW-12/A bearing No. 259/2002, dated 13.07.2002 was registered. Police started the investigation. The inquest report was prepared. The dead body was sent for post mortem examination to Zonal Hospital, Bilaspur. The post mortem was conducted by PW-11, Dr. N.K. Sankhyan. According to the investigation, Shri Vishal Panwar was murdered elsewhere and his dead body alongwith scooter was thrown below National Highway. Shri Mohd. Aslam (PW-5) and Shri Imran Khan (PW-6) made statements to the Police under Sections 161 of the Criminal Procedure Code. According to them, Shri Vishal Panwar has been murdered by the accused in residential premises of Parvej Khan, resident of Village Behal Kandela and both the accused have lifted the dead body of Vishal Panwar and put the same on scooter and had taken the same near the area of Sungal Village near National Highway. According to them, Shri Vishal Panwar has been murdered by the accused in residential premises of Parvej Khan, resident of Village Behal Kandela and both the accused have lifted the dead body of Vishal Panwar and put the same on scooter and had taken the same near the area of Sungal Village near National Highway. They have thrown the dead body and the scooter from a steep gradient (dhank). Thereafter, the accused were arrested on 12.08.2002. The statements of the accused were recorded under Section 27 of the Indian Evidence Act. On the basis of the disclosure statements made by the accused, Kulhari (axe) and clothes were recovered. The Kulhari with other articles was sent for forensic examination. The investigation was completed and thereafter challan was put up after completing all the codal formalities. 3. The prosecution has examined 20 witnesses in support of its case. The statements of the accused were also recorded under Section 313 of the Criminal Procedure Code. They have pleaded innocence and claimed trial. Accused Parvej Khan has examined two DWs. and accused Manoj Kumar has produced 10 defence witnesses. Learned trial Court acquitted the accused on 16.09.2005. Hence, this appeal by the State. 4. We have heard the learned counsel for the parties and gone through the records carefully. 5. PW-1 is the father of deceased Vishal Panwar. He stayed for night on 12.07.2002 in his official residence at Ghumarwin. He received a telephonic message on 13.07.2002 that his son Vishal Panwar has met with an accident. He reached at the place of accident at 11/12 noon and found the dead body of his son lying near the dhank on the road side and the scooter of his son was also lying nearby. He made a statement to the police at the spot that his son appears to have been murdered and this should be properly investigated. The statement Ex.-PA was recorded and the same was read over to him. Police came to the shop of the deceased and took into possession a digital diary and one simple diary vide recovery memo Ex.-PB. 4. 6. PW-2, Shri Sita Ram is the Up Pradhan of Gram Panchayat, Banola. According to him, Shri Ganga Ram came to his shop at Sungal and informed him at 10:00/10:15 a.m. that a dead body and a scooter lying at a distance of 200-300 metres away from his shop. 4. 6. PW-2, Shri Sita Ram is the Up Pradhan of Gram Panchayat, Banola. According to him, Shri Ganga Ram came to his shop at Sungal and informed him at 10:00/10:15 a.m. that a dead body and a scooter lying at a distance of 200-300 metres away from his shop. He went to the spot alongwith Ganga Ram to verify. Thereafter, he informed the police. The police took into possession the scooter, the dead body and blood stained soil and some stones vide recovery memo Ex.-PD, which was signed by him. The memo of scooter Ex.-PE was also signed by him. In his cross-examination, he deposed that the police did not find any blood stained stone and soil between Sagar View Hotel and Rest a While point. 7. PW-3, Shri Nand Lal was the Pradhan of Gram Panchayat, Bamta. He was associated with the investigation by the police. He went to the Police Station, where the police was interrogating both the accused persons. Accused Parvej has stated about the lower (Trouser) which he could get recovered from his house. The accused had taken the police to the house and the key of the house was with the police. According to him, some experts had come and they took into possession sample of blood, which was lying on the floor of the room. The disclosure statement of accused Parvej, Ex.-PH and Fard Nishan Dehi was signed by him. On the next day, accused Manoj Kumar gave a disclosure statement in his presence that he could get recovered his blood stained clothes which have been washed by him. He identified his signatures on Ex.-PK. Accused Manoj took the police to his house and got recovered the clothes vide recovery memo Ex.-PL. According to him, the accused Manoj has not signed on disclosure statement and recovery memo in his presence. However, Ram Lal has signed in his presence. The clothes were put in a cloth and were sealed at the spot. A disclosure statement was also made by accused Parvej on 19.08.2002 to the effect that he could get recovered a kulhari from his house vide Ex.-PM. According to him, the accused has not signed in his presence. The Kulhari was recovered vide memo Ex.-PN. It was sealed in a cloth parcel. A disclosure statement was also made by accused Parvej on 19.08.2002 to the effect that he could get recovered a kulhari from his house vide Ex.-PM. According to him, the accused has not signed in his presence. The Kulhari was recovered vide memo Ex.-PN. It was sealed in a cloth parcel. The police has also taken into possession the blood stained soil and mat from the scooter of the deceased vide recovery memo Ex.-PO. He was declared hostile. He also deposed that the parcels were prepared at the spot but were sealed at the Police Station. 8. PW-5, Shri Mohd. Aslam has deposed that PW-6, Sh. Imran Khan is his brother-in-law. He has come to Bilaspur about two years ago for his own work. PW-6 Imran Khan has been called by the police. He enquired from him as to why the police was calling him. He disclosed to him that he was present in the house of Parvej Khan and Manoj Kumar was also present there. They were watching a movie. According to him, Panwar came to the house after some time and thereafter a quarrel took place between Panwar, Parvej and Manoj Kumar. He further told him that thereafter Manoj Kumar picked a danda and gave a blow over the head of Panwar. PW-6 Imran Khan tried to save Panwar, but the accused person did not agree. In his cross-examination, he admitted that he did not tell the facts, as narrated to him by PW-6, Imran Khan to any members of the family present in the house or any body else till he disclosed the same to the police after two days. According to him, his statement under Section 164 of the Criminal Procedure Code that the facts were told to him by PW-6 Imran Khan at Sunder Nagar was incorrect and the statement made by him in the Court was correct. 9. PW-6, Shri Imran Khan is the only eye witness. According to him, accused Parvej Khan is his maternal uncle’s son. On 09.07.2002, he has come to Bilaspur. On 11.07.2002, he has gone to the house of accused Parvej Khan, who was watching movie. Accused Manoj Kumar was also present there. Three Neapali boys were also watching the movie. These three Nepali boys left after seeing the movie to sleep in the Verandah. They started playing the second movie and were watching the same. On 11.07.2002, he has gone to the house of accused Parvej Khan, who was watching movie. Accused Manoj Kumar was also present there. Three Neapali boys were also watching the movie. These three Nepali boys left after seeing the movie to sleep in the Verandah. They started playing the second movie and were watching the same. At about 12 during night, a boy named Panwar came there, who was under the influence of liquor. Thereafter, some altercation took place between them. After he slept, accused Manoj gave a danda blow on his head. He tried to stop Manoj and Parvej from giving blows to Panwar and tried to open the bolt of the door. Thereafter, he left the place. He reached at his maternal uncle’s house by 1:30 p.m. In his cross-examination, he has admitted that he did not raise any hue and cry when danda blow was given by accused Manoj. He also admitted that his maternal uncle Anwar Khan was present in the house on that night, but he has not disclosed this fact to him. He has not disclosed this fact to any person for 34 days. 10. PW-11, Dr. N.K. Sankhyan has deposed that he has conducted the post mortem on the body of deceased Vishal Panwar on 13.07.2002. According to him, the probable time that elapsed between injuries and death was few minutes to few hours and probable time that elapsed between death and post mortem was 6 hours to 24 hours. On receipt of Chemical report Ex.-PV, his final opinion was that deceased Vishal Panwar died due to ante mortem head injury. . This was recorded vide Ex.-PW. According to him, injury No. 6 could be possible with a sharp edged wooden piece and the remaining injuries on the head of deceased could be possible with kulhari, Ex. P-6. 11. According to PW-15, Shri Nazir Khan, on 13.07.2002, a telephonic information was received from Shri Sita Ram, Up-Pradhan that a dead body was lying near Sungal Village and Scooter was also lying nearby. Thereafter, he alongwith Inspector Sanjiv Chauhan and other police members went to the spot. A dead body and a scooter were lying beneath the National Highway near Sungal village. Shri Shyam Lal Panwar and his brother came to the spot and identified the dead body of Vishal Panwar. Thereafter, he alongwith Inspector Sanjiv Chauhan and other police members went to the spot. A dead body and a scooter were lying beneath the National Highway near Sungal village. Shri Shyam Lal Panwar and his brother came to the spot and identified the dead body of Vishal Panwar. The dead body was sent for post mortem examination and the Inspector has conducted the spot inspection. According to him, accused Parvej Khan has made a disclosure statement that he has concealed the axe in his house and could get the same recovered. The disclosure statement is Ex.-PM. It was signed by accused Parvej Khan, Baldev Singh and Nand Lal. Thereafter, he accused Parvej Khan has identified his house and produced axe from his room, which was taken into possession vide Ex.-PN in the presence of witnesses. The memo was also signed by accused Parvej Khan. He has also prepared the spot map Ex. PW-15/A about the recovery of axe and khaka Ex. PW-15/B was also prepared by him. 12. PW-16, Anjna Kumari has deposed that she did not know accused persons. She was declared hostile. She has also deposed that the police has threatened her to make a statement according to their wishes. 13. PW-17, Shri Shamual Khan has deposed that he did not know anything about the accused and nothing was recovered in his presence. He was declared hostile. 14. According to PW-19, SI Ram Sarup, on 19.08.2002, accused Manoj Kumar has made a disclosure statement in the presence of Ram Lal and Nand Lal vide Ex.-PK. The same was signed by the witnesses. On identification of Manoj Kumar accused, he led the police party to Upper Khairian in his house and got recovered one pant and one shirt. Both pant and shirt were sealed in one pullanda and sealed with seal impression ‘D’ and the seal after use was handed over to Nand Lal. The recovery memo was prepared on the spot, which was signed by PWs. Ram Lal and Nand Lal on the spot. 15. PW-20 is Inspector Sanjeev Chauhan. According to him, on 13.07.2002, a telephonic message was received at Police Station, Sadar, Bilaspur regarding dead body lying near Sungal. He verified the facts and visited the spot alongwith police party. On the spot, the dead body was identified by Shri Shyam Lal, father of the deceased. His statement under Section 154, Cr. 15. PW-20 is Inspector Sanjeev Chauhan. According to him, on 13.07.2002, a telephonic message was received at Police Station, Sadar, Bilaspur regarding dead body lying near Sungal. He verified the facts and visited the spot alongwith police party. On the spot, the dead body was identified by Shri Shyam Lal, father of the deceased. His statement under Section 154, Cr. P.C. was recorded vide Ex.-PA. In sequel thereto, F.I.R. Ex. PW-12/A was registered. He has also taken into possession the scooter vide memo Ex.-PE. The blood stained stones and soil were also taken into possession vide memo Ex.-PD. Spot map Ex. PW-20/D was also prepared. On 12.08.2002, the statements of Imran Khan and Mohd. Aslam were recorded by him. On 13.07.2002, both these witnesses deposed before the learned Chief Judicial Magistrate, Bilaspur, Camp at Ghumarwin, under Section 164 Cr. P.C. On 15.08.2002, accused Parvej Khan made a disclosure statement under Section 27 of the Indian Evidence Act regarding the weapon of offence and the clothes which he was wearing at the time of occurrence. The accused has further made a disclosure statement regarding the place where the blood stained clothes were burnt. The statement is Ex.-PH, which was recorded in the presence of Nand Lal and Ram Lal and also signed by accused Parvej Khan. Thereafter, accused Parvej Khan led the police party to his house. Accused opened his house from the key which the police had already taken into possession at the time of his arrest. Accused Parvej Khan gave a description of the bed where the deceased was lying and blood stained planks (back rest) was taken into possession by cutting the portion where the blood was seen and found. At the instance of accused Parvej Khan, one black lower (trouser) was also taken into possession. Thereafter, accused Parvej Khan further led the police party towards the bushes near his house where the accused Paravej Khan had kept blood stained mattress, bed sheet, which were put in a gunny bag and his blood stained shirt and clothes which were used for cleaning the floor were kept for 4-5 days. Accused Parvej Khan thereafter led the police party to a place where he set on fire after using kerosene oil, blood stained mattress etc. Accused Parvej Khan thereafter led the police party to a place where he set on fire after using kerosene oil, blood stained mattress etc. On 19.08.2002, accused Parvej Khan again made a disclosure statement under Section 27 of the Indian Evidence Act regarding the weapon of offence, i.e., small axe and the same is Ex.-PM. In his cross-examination, he has admitted that “Rest a While” is at a distance of 2/3 meters from the National Highway and there is a provision of sitting, as 2/3 benches of cements are provided therein. He has also admitted to be correct that blood stains were found on the way from the “Rest a While” up to the place where the dead body was lying. He did not find any trail of blood from the “Rest a While” towards Bilaspur side on the road. He also admitted to be correct that “Rest a While” is at a distance in between 500 mtrs. to 1 km. up to Punjab Dhaba towards Bilaspur side. He did not find any trail of blood on this road. The distance in between Punjab Dhaba and the house of Gulzar Khan is about 50 mtrs. The house of Gulzar Khan is at a distance of 10 mtrs. from the National Highway, if one goes through the common path. He has also deposed that the house of accused Parvej Khan was searched on 14.07.2002 and thereafter the search of the house was conducted on 15.08.2002. He has also admitted in his cross-examination that three Nepalis, who were associated in the investigation, told that they did not see any body coming or going in the house on that night. He did not find any trail of blood in that Pagdandi. On 19.08.2002, a disclosure statement regarding Kulhari was recorded by him and the same was recovered. He has also admitted that accused Parvej Khan had not disclosed about the kulhari from 12.08.2002 to 19.08.2002. He also admitted that when they reached at the spot, nobody was present at the house of Parvej Khan accused. The house was locked. The key of the house was taken by him from MHC before departure to the spot. 16. According to PW-11, Dr. N.K. Sankhyan, the death has resulted due to ante mortem head injury. He also admitted that when they reached at the spot, nobody was present at the house of Parvej Khan accused. The house was locked. The key of the house was taken by him from MHC before departure to the spot. 16. According to PW-11, Dr. N.K. Sankhyan, the death has resulted due to ante mortem head injury. According to him, injury No. 6 could be possible with a sharp edged wooden piece and the remaining injuries on the head of the deceased could be possible with kulhari, Ex. P-6. According to PW-6, Sh. Imran Khan, who is the material witness in this case, the injury was caused to deceased with danda blow. According to him, Vishal Panwar was under the influence of liquor. He visited the house of Parvej Khan, where Manoj Kumar was also present. However, it has come in the statement of PW-11, Dr. N.K. Sankhyan that no poison or alcohol was detected in the stomach, small intestines, kidney, liver, spleen and blood of the deceased Vishal Panwar. The statement of PW-6, cannot be believed. He has disclosed the incident after 34 days to PW-5, Mohd. Aslam. It is not believable that a person, who has seen the incident, would not disclose it to his family members or to other persons. PW-6, Shri Imran Khan has not raised hue and cry, when according to him, Vishal Panwar was given beatings by the accused persons. According to him, three Nepalis were also watching movie. Though they have gone to sleep out-side in Verandah, but he could seek their assistance in preventing the crime. These three Nepali boys, though were interrogated, but were not cited as witnesses. He has given three different versions of the incident in his statements recorded under Sections 161 and 164 of Criminal Procedure Code and before the Court. According to him, he has gone to the house of his maternal uncle. The door was opened by his maternal uncle. He should have disclosed this incident to his uncle. The explanation given by him for not disclosing the incident for 34 days, cannot be believed. 17. According to the prosecution case, the incident was narrated by PW-6, Shri Imran Khan to PW-5, Mohd. Aslam. According to PW-5, PW-6 has told him that the danda blow was given on the head of deceased by Manoj Kumar. The explanation given by him for not disclosing the incident for 34 days, cannot be believed. 17. According to the prosecution case, the incident was narrated by PW-6, Shri Imran Khan to PW-5, Mohd. Aslam. According to PW-5, PW-6 has told him that the danda blow was given on the head of deceased by Manoj Kumar. PW-5 has inquired from PW-6 that why he has not disclosed this incident for the last one month. PW-6 did not give any reason, except that he never wanted to disclose the incident. According to the statements recorded under Sections 161 and 164, Cr. P.C., PW6, Shri Imran Khan revealed about the factum of occurrence for the first time to PW-5, Mohd. Aslam at Sundernagar. However, while appearing as PW-5 and PW-6, they deposed that when PW5, Shri Mohd. Aslam was reciting the holy Kuran in the house of Shri Anwar Khan at Bilaspur, then the fact of occurrence was told to him by Shri Imran Khan. 18. There are improvements in the statements made by PW-5, Mohd. Aslam and PW-6, Shri Imran Khan. 19. According to the prosecution, the clothes of accused Manoj Kumar were taken into possession by the police during investigation in the presence of PW-3, Nand Lal and Shri Ram Lal vide recovery memo Ex.-PO. PW-3, Nand Lal has been cited as a marginal witness in all the disclosure statements of accused recorded under Section 27 of the Indian Evidence Act. PW-3, Shri Nand Lal, in his statement has deposed that accused Manoj has not signed on disclosure statement and recovery memo in his presence. He has also deposed that accused Parvej Khan has not signed statement Ex.-PM in his presence about the recovery of kulhari from his house. He was declared hostile. On examination by the learned Public Prosecutor, he has reiterated that the disclosure statements and recovery memos Ex.-PK, Ex.-PL, Ex.-PM and Ex.-PN were not signed by the accused. According to him, the parcels were prepared at the spot, but were sealed at the Police Station and Ex.-PJ was also signed at the Police Station. Thus, the recovery of Kulhari and other articles also becomes doubtful. 20. PW-20, Sh. Sanjeev Chauhan has admitted that accused Parvej Khan has made a disclosure statement earlier, but he has not disclosed that Kulhari was lying in his house and he could get the same recovered. Thus, the recovery of Kulhari and other articles also becomes doubtful. 20. PW-20, Sh. Sanjeev Chauhan has admitted that accused Parvej Khan has made a disclosure statement earlier, but he has not disclosed that Kulhari was lying in his house and he could get the same recovered. The keys of the house were with the police and it is not believable that kulhari could not be traced by the police when the house of Parvej Khan was earlier searched by the Police on 14.07.2002 and 15.08.2002. No blood stains were found on kulhari in the F.S.L. report. 21. The dead body alongwith blood stained soil and stones were taken into possession vide recovery memo Ex.-PD in the presence of PW-2, Shri Sita Ram. According to him, the police did not find any blood stained stones and soil between Sagar view Hotel and “Rest a While”. 22. PW-20, Sanjiv Chauhan has also deposed that from point “Rest a While”, blood stained marks were found and the blood stains were also found on the Rest a While point up to the place where the dead body was lying. However, he did not find any trail of blood from “Rest a While” towards Bilaspur side on the road. If the blood stains had been noticed and found by PW20, Sanjeev Chauhan between the point “Rest a While” and place where the dead body was lying, then had the dead body of the deceased been carried by the accused from the house of Parvej Khan to the National Highway and up to the point “Rest a While”, then certainly there would have been trail of blood. 23. There are material contradictions in the statement of eye witness and medical evidence. According to PW-6, Sh. Imran Khan, a danda blow was given on the head of deceased. However, as per the statement of Dr. N.K. Sankhyan (PW-11), he did not find any external injury on the head of the deceased. In case a danda blow was given on the head of deceased, there must have been some laceration wound or injury or abrasion on the external part of the head. Thus, the prosecution has failed to prove the charge against the accused persons. The circumstances relied upon by the prosecution are not of conclusive nature. 24. The learned trial Court after considering the entire evidence, has rightly acquitted the accused. Thus, the prosecution has failed to prove the charge against the accused persons. The circumstances relied upon by the prosecution are not of conclusive nature. 24. The learned trial Court after considering the entire evidence, has rightly acquitted the accused. We, therefore, find no merit in this appeal, which is accordingly dismissed. Bail bonds are discharged.