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Himachal Pradesh High Court · body

2012 DIGILAW 538 (HP)

State of H. P. v. Surinder Singh

2012-09-12

RAJIV SHARMA

body2012
JUDGMENT Rajiv Sharma, Judge (Oral): State has come in appeal against the judgment, dated 30.04.2004 of the learned Additional Sessions Judge, rendered in Sessions Trial No. 37-S/7 of 2003/2001, whereby the respondents, who were charged with and tried for offence punishable under Section 302 read with Section 34 of the Indian Penal Code, have been acquitted. 2. Case of the prosecution, in a nutshell, is that on 09.10.2000, complainant Narain Singh (PW-2), resident of Village Makhdol, has gone to Kufri. He finished his work and left for his house and came up to Fagu in a bus. The bus reached at Fagu at about 6:00 p.m. His wife has gone to the house of her parents in order to attend a marriage. He waited for his wife at Fagu, however, when she did not come, he started going alone to his house at about 7:15 p.m.. He saw accused Surinder Singh and Pardeep Kumar giving beatings to Roop Singh with fist blows. One Shri Shyam Singh, resident of Katiyar was trying to rescue the deceased. Two-three persons were also going ahead. Roop Singh was rescued with the intervention of Shyam Singh. Shyam Singh took Surinder and Pardeep ahead. He alongwith Roop Singh sat near the baudi, where they rested for five minutes. They had hardly gone about 200 yards ahead, when accused Surinder Singh at once emerged from the bushes and gave a blow on the right side of the face of the deceased. Roop Singh sat down. Shri Shyam Singh and three-four other persons, who were going ahead, came on the spot. Surinder Singh has asked the complainant to go to his house. Accused Surinder also appeared to be under the influence of liquor and has also tried to beat the complainant. He went to his house by leaving behind the deceased. On that day, the marriage of the son of Sh. Tara Chand, Pardhan, Gram Panchayat was being solemnized. He went to attend the marriage at about 8:30 p.m. Shri Geeta Ram, the brother of the deceased has also come to attend the marriage, to whom he told about the incident. On the next day, i.e., 10.10.2000, Sh. Gulab Singh, the brother of the deceased and his mother has come to his house, in the morning and he also told them about the incident. On the next day, i.e., 10.10.2000, Sh. Gulab Singh, the brother of the deceased and his mother has come to his house, in the morning and he also told them about the incident. When the whereabouts of the deceased could not be known, a report was lodged at Police Post Fagu by his brother Gulab Singh on 11.10.2000. A search was made by the complainant, the brother and other relatives of the deceased as well as villagers along with Constable Narinder Parkash. When the search party reached near a place where the deceased had been given a slap by accused Surinder, his dead body was found in a Nalah at a distance of 100 feet from the passage. On returning to Police Post Fagu, Constable Narinder Parkash made a rapat in the rapat rojnamcha, which was entered as rapat No. 8 on 11.10.2000. S.H.O., Police Station Theog went to the spot, where the dead body was lying. He recorded the statement of the complainant under Section 154, Cr. P.C. He took the photographs of the dead body on the site with his official camera and also prepared the site plan. He collected blood stained soil and stone, which were taken into possession. The FIR was also registered. The inquest papers were prepared and the body was sent to I.G.M.C. The post mortem was conducted by PW-1, Dr. Piyush Kapila. He has preserved the viscera. The blood stained soil, stones and viscera were sent to F.S.L., Junga. The reports of the Chemical Examiner were received, which are Ex.-PA and Ex.-PQ. Thereafter, the matter was investigated and the challan was put up after completing all the codal formalities by the police. 3. The accused were also examined under Section 313 of the Criminal Procedure Code. They pleaded innocence and claimed trial. According to them, a false case was registered against them. Learned Additional Sessions Judge, Shimla has acquitted the respondents on 30.04.2004. Hence, this appeal by the State. 4. We have heard the learned counsel for the parties and gone through the judgment and the records carefully. 5. PW-2, Narain Singh has deposed that on 09.10.2010, he was returning to Fagu from Kufri. From Fagu, when he was on his way to his house, he saw Roop Singh sitting under the influence of liquor at bawadi. 4. We have heard the learned counsel for the parties and gone through the judgment and the records carefully. 5. PW-2, Narain Singh has deposed that on 09.10.2010, he was returning to Fagu from Kufri. From Fagu, when he was on his way to his house, he saw Roop Singh sitting under the influence of liquor at bawadi. He asked him to accompany him to his house, but he declined by saying that he would come later on. He came to his house. On the next day, i.e., 10.10.2000, his brother met him and told that Roop Singh has not returned home. He told him that on 09.10.2000, he had seen Roop Singh sitting near a bawadi in a state of intoxication. He has advised Gulab Singh, the brother of Roop Singh that efforts be made in order to find out him. On 11.10.2000, Gulab Singh told him that he could not trace out his brother Roop Singh and asked him to accompany him to Police Post Fagu so that a report about the missing of Roop Singh could be lodged there. At Police Post Fagu Gulab Singh lodged a report that his brother was missing. The police has also recorded his statement under Section 154 of the Cr. P.C., Ex.-PC. He was declared hostile. On cross-examination by the learned Public Prosecutor, he deposed that he was 6th pass. He has served in ITBP for five years. He could read and write Hindi. He could not say whether Ex.-PC was scribed correctly or wrongly. According to him, he only lodged a report of missing. He has denied the suggestion that he has told the police that when he was on his way to his house, he saw accused persons, namely Surinder and Pardeep Kumar fighting with Roop Singh and that one Shri Shyam Singh was trying to rescue him. He has also denied the suggestion that he has tried to save Roop Singh from the clutches of the accused persons, but Shyam Singh has succeeded in rescuing Roop Singh. He also denied that when they reached near a bawari, accused Surinder Singh again came and told Roop Singh that he was to be given more beatings, but with the intervention of Shyam Singh, he was rescued. He also denied that when they reached near a bawari, accused Surinder Singh again came and told Roop Singh that he was to be given more beatings, but with the intervention of Shyam Singh, he was rescued. He also denied the suggestion that when they have gone to some distance ahead, accused Surinder Singh has emerged and given a blow to Roop Singh. He also denied the suggestion that when Roop Singh has cried, Shyam Singh and three-four persons came on the spot and told him that they would get the matter settled. He also denied the suggestion that when he returned back to his house, he told the entire incident to Geeta Ram and Gulab Chand, brothers of Roop Singh and the mother of Roop Singh. He has admitted that he has gone to the spot where the dead body of Roop Singh was lying. 6. PW-3, Shri Shyam Singh has deposed that on 09.10.2000, he was at Kufri. From Kufri, he was coming to his house. From Fagu, two boys, namely, Randhir and Tara Chand joined him and they all started to attend the marriage of the son of Pardhan, Gram Panchayat. He deposed that nothing has happened in his presence. He was also declared hostile. He was cross-examined by the learned Public Prosecutor at length. He has denied that when he alighted from the bus at Fagu alongwith Randhir and Tara, accused persons, namely, Surinder and Pardeep Kumar were present at the place. They also joined them to attend the marriage while in a state of intoxication. He has also denied that Roop Singh has met Surinder and Pardeep and they started beating by giving kicks and fist blows. He also denied that Narain Singh also came there and he with the help of Narain Singh rescued Roop Singh. He also denied that when they reached near a bowdi, accused Surinder again started beating and he with the help of Narain Singh has rescued him. He has also denied that when they reached some distance ahead of bowdi, accused Surinder Singh has emerged from the bushes and gave a blow to Roop Singh and at that time Randhir, Tara Chand and Pardeep accused were also present. He has also denied that at that time Roop Singh has told him that Surinder Singh has given him a slap which led to puncture of his ear drum. 7. He has also denied that at that time Roop Singh has told him that Surinder Singh has given him a slap which led to puncture of his ear drum. 7. PW-4, Gulab Singh has also deposed that on 09.10.2000, Narain Singh told him that 10-12 persons had a fight with his brother, Roop singh. According to him, he has not told the names of those persons. He took 10-12 persons from the village in order to search for his brother and in furtherance of that exercise, they went to the houses of their relatives in order to find out as to whether Roop Singh had come there or not. When no clue about the whereabouts of Roop Singh could be known, they returned to their houses. On 11.10.2000, they went to Police Post, Fagu and told that Roop Singh was missing. Thereafter, he alongwith 8-10 persons went to the place where the fight has taken place and found the dead body of Roop Singh. 8. PW-5, Narinder Parkash has deposed that he was posted as Constable at Police Post Fagu. He has brought the original rapat rojnamcha. He has seen rapat No. 7, dated 11.10.2000 about missing of Roop Singh. On the basis of this report, he was sent in search of Roop Singh alongwith Gulab Singh and Narain Singh. 9. PW-6, Tara Chand has deposed that on 09.10.2000, he has gone to attend the marriage of the son of Pardhan in village Katiyar. He de-boarded the bus at Fagu. He went to the house of Pardhan to attend the marriage. Randhir and Shyam Singh were also accompanying him. No one met them on the way. He was declared hostile. He was cross-examined by the learned Public Prosecutor at length. He denied that on the way, Roop Singh has met them and accused Surinder Singh started beating him and that Narain Singh intervened and rescued Roop Singh from the clutches of Surinder Singh. He has denied that he heard a sound of giving a slap, upon which Shyam Singh went back to rescue Roop Singh. He has also denied the suggestion that Roop Singh has sat on the spot. 10. PW-11, SI Anand Ram has deposed that on 11.10.2000, an information was received at Police Station from Constable Narinder Parkash that in Bagna Jungle, dead body of Roop Singh, who had been reported missing was lying. He has also denied the suggestion that Roop Singh has sat on the spot. 10. PW-11, SI Anand Ram has deposed that on 11.10.2000, an information was received at Police Station from Constable Narinder Parkash that in Bagna Jungle, dead body of Roop Singh, who had been reported missing was lying. A rapat was entered to this effect in rojnamcha vide Ex.-PG. He went to the spot alongwith police staff and recorded the statement of Narain Singh vide Ex.-PC. He made an endorsement Ex.-PK, on the basis of which FIR Ex.-PL was registered. He inspected the spot and prepared site plan Ex.-PM. He also collected the blood stained soil and one stone vide Ex.-PD. He prepared the inquest papers and thereafter the body was sent for conducting the post mortem. The post Mortem report is Ex.-PB. He has sent the clothes, viscera, stones and blood stained soil for chemical examination to F.S.L., Junga. The Chemical Examiner’s reports are Ex.-PA and Ex.-PQ. 11. PW-1, Dr. Piyush Kapila has conducted the post mortem on the body of deceased Roop Singh. According to him, the deceased died due to multiple antemortem injuries to vital organs which led to haemorrhagic shock combined with manual throttling which led to asphyxia-homicidal in nature. The probable time which elapsed between injury and death was few minutes and between death and post mortem examination was around 48 to 72 hours. In his cross-examination, he has admitted that on the basis of his spot inspection, the possibility could not be ruled out that the deceased might have fallen down under the influence of liquor (270 mg.) as per Ex.-PA and that he might have been thrown down. According to him, except injuries No. 8 and 9, all the injuries as mentioned in Ex.-PB, could be caused due to fall. 12. In this case, all the material witnesses, PW-2, Narain Singh, PW-3, Shyam Singh and PW-6, Tara Chand have not supported the case of the prosecution. All of them were declared hostile. PW-2, Narain Singh has not deposed that he has seen accused giving beatings to deceased. According to him, he has only seen Roop Singh sitting under the influence of liquor near a bouri. Thereafter, he went to his house. Similarly, PW-3, Shyam Singh has deposed that nothing has happed in his presence. All of them were declared hostile. PW-2, Narain Singh has not deposed that he has seen accused giving beatings to deceased. According to him, he has only seen Roop Singh sitting under the influence of liquor near a bouri. Thereafter, he went to his house. Similarly, PW-3, Shyam Singh has deposed that nothing has happed in his presence. PW-6, Tara Chand has also deposed that he de-boarded the bus at Fagu and went on foot to the house of Pardhan to attend the marriage. Randhir and Shyam Singh were also accompanying him, but, no body met them on their way. PW-2, Narain Singh, PW-3, Shyam Singh and PW-6, Tara Chand have denied that accused have given beatings to Roop Singh twice. 13. According to the prosecution when the accused was being given beatings, he was saved by PW-3, Shyam Singh on two occasions. However, PW-3, Shyam Singh has not supported the case of the prosecution at all. It has come in the statement of PW-1, Dr. Piysh Kapila that the deceased, as per the report of Chemical Examiner Ex.-PA, was under the influence of liquor (270 mg.). He also deposed that in view of this, the possibility of the deceased fallen down could not be ruled out. PW-2 and PW-3 have not supported the case of the prosecution that the accused were lastly seen with the accused. PW3, Shyam Singh has admitted that when he reached the house of Pardhan, Tara Chand to attend the marriage of his son, accused persons were already present. Consequently, the prosecution has miserably failed to prove the case against the accused. 14. 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.