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2012 DIGILAW 645 (HP)

State of Himachal Pradesh v. Kuldeep Kumar

2012-09-27

DEEPAK GUPTA, RAJIV SHARMA

body2012
JUDGMENT Per Deepak Gupta, J. 1. This appeal by the State is directed against the judgement dated 6.9.2004 passed by the learned Sessions Judge, Solan, in Sessions trial No. 7-S/7 of 2004 whereby he acquitted accused Kuldeep Kumar of having committed an offence punishable under Section 302 IPC and his brother co-accused Mohinder Singh of committing an offence under Section 202 IPC. 2. The prosecution story, briefly stated, is that Kuldeep Kumar murdered his uncle Sohan Lal because Sohan Lal was allegedly about to change his Will executed in favour of the accused. It is also alleged that Mohinder Singh helped his brother Kuldeep Kumar in covering up the evidence and thus committed an offence punishable under Section 202 IPC. 3. On 29.11.2003, PW-2 Kanta Devi, resident of village Khali, Tehsil Arki, District Solan, had gone to her fields to collect hay. About 10.00 a.m while she was collecting hay she spotted a blood stained blanket in the bushes. This aroused her curiosity and she looked towards the spot and saw a dead body lying in the bushes. She immediately came home and informed her husband Mohinder Singh about the dead body, who in turn informed PW-1 Naresh Kumar, who was the then Up Pradhan of the Gram Panchayat, Bakhalag. PW-1 thereafter rang up the police, passed the aforesaid information and went to the spot. Sh. Mansa Ram and Sh. Padam Chand alongwith other villagers had gathered at the spot. A pair of shoes and blanket were noticed in the bushes. Another blanket and a cap were also noticed near the dead body. The dead body was lying face downwards in the bushes. There was a pierced wound on the neck. When the dead body was turned over more injuries were seen. The nose and the ear-lobes were found to be mutilated. Despite best efforts the dead body could not be identified. 4. Thereafter, photographs of the dead body were taken. The body was sent to the hospital for post mortem examination. Five injuries were noticed and Dr.Sant Lal Sharma PW-12 opined that the death had taken place within 72 hours and had occurred instantaneously. Unfortunately, no clue about the identification of the dead body could be found despite the fact that photographs were shown to several persons. The body was sent to the hospital for post mortem examination. Five injuries were noticed and Dr.Sant Lal Sharma PW-12 opined that the death had taken place within 72 hours and had occurred instantaneously. Unfortunately, no clue about the identification of the dead body could be found despite the fact that photographs were shown to several persons. More than 1½ months later, on 16.1.2004 a notice was received by the SHO Police Station, Arki, in whose jurisdiction the dead body had been found, from SHO Police Station, Darlaghat. In this notice it was mentioned that a man named Sohan Lal resident of village Kurawala, Tehsil Arki is missing. The description of the missing man given in the notice tallied with the description of the dead body recovered from the bushes near village Khalli on 29.11.2003. 5. The SHO Police Station, Arki called the people of the village Kurawala including the two accused, their father and the third brother. During investigation it was found that Sohan Lal was residing with the accused and their family members and had made a Will of his property in favour of the two accused and their third brother. The police case is that when the photographs of the dead body were shown to the accused and their brother they denied that the dead body was of Sohan Lal. However, the other villagers identified the photographs to be of Sohan Lal. The accused were arrested and interrogated and on 30.1.2004 and thereafter on 1.2.2004 accused Kuldeep Kumar while in police custody made a disclosure statement that he had kept the blood stained ‘darries’, which served as seat covers in the cabin of his truck No.HP-11-1558 and a blanket and a towel, which had all got blood stained at a deserted place in village Ghaggar and could get the same recovered. Pursuant to his statement two ‘darries’, a blanket and a towel were recovered. They were stained with blood. On the same day Kuldeep Kumar also produced an iron rod used as a tyre lever from the driver’s cabin of the aforesaid truck. The prosecution case is that this iron rod was used by Kuldeep Kumar to kill Sohan Lal. 6. Interestingly, at the same time PW-11 Amit Kumar resident of Ner-Chowk in District Mandi was contacted by the police and informed that he was employed as a driver by the accused on their truck. The prosecution case is that this iron rod was used by Kuldeep Kumar to kill Sohan Lal. 6. Interestingly, at the same time PW-11 Amit Kumar resident of Ner-Chowk in District Mandi was contacted by the police and informed that he was employed as a driver by the accused on their truck. According to him he was an eye witness to the murder of Sohan Lal and his version was that Kuldeep Kumar had murdered Sohan Lal. According to him on 26.11.2003 Kuldeep Kumar picked up deceased Sohan Lal from a place known as Chamakhri-pul late at night. Sohan Lal was taken in a truck towards Piplughat where both Sohan Lal and accused Kuldeep Kumar consumed liquor, which was purchased by the accused at Chamakhri-pul. Witness Amit Kumar was also sitting in the truck and his version is that the accused consumed small quantity of liquor and the deceased Sohan Lal was served with large quantity of liquor as a result of which Sohan Lal became unconscious. Thereafter Sohan Lal was taken in a truck to a place about one or two kilometers beyond Piplughat. The truck was stopped there. Then accused Kuldeep Kumar told the witness that he was going to kill Sohan Lal since Sohan Lal was planning to change the Will made in favour of the accused and their brothers. Amit Kumar pleaded with the accused not to commit such a heinous act but Kuldeep Kumar picked up the iron rod and hit the deceased with full force. Amit Kumar got scared and ran away from the spot. He reached Bhrarighat at about 2.30 or 3.00 a.m and from there he caught a bus to his native place in Mandi District. Next day he informed the second accused Mohinder Singh on telephone about the incident and allegedly stated that he was no longer interested in serving as a driver in the truck. 7. During investigation, PW-10 Hemant Kumar, brother-in-law of Kuldeep Kumar, also told the police that on the night intervening 26th and 27th November, 2003 accused Kuldeep Kumar reached his house in village Jakholi around 1 p.m, took him to a nearby water source and washed his truck and clothes which had stains of blood. Further according to the prosecution the accused made a confession before this witness that he had committed the murder of Sohan Lal. Further according to the prosecution the accused made a confession before this witness that he had committed the murder of Sohan Lal. The statement of Amit and Hemant Kumar were also recorded before the learned Chief Judicial Magistrate under Section 164 Cr.P.C. Other formalities were completed and on completion of the investigation the trial Court charged the accused with having committed the offences aforesaid. They have been acquitted and hence this appeal by the State. 8. Shri J.S. Guleria, learned Assistant Advocate General, has urged that the learned trial Court erred in acquitting the accused whereas Sh.Neeraj Sharma, learned counsel for the accused submits that the judgement of the learned trial Court is well reasoned and calls for no interference. 9. The main issue which arises in this appeal is whether the Court can rely on the statement of PW-11 Amit Kumar. As per the prosecution, Kuldeep Kumar murdered Sohan Lal near Piplughat on the night intervening 26.11.2003 and 27.11.2003. The dead body was found two days later on 29.11.2003. Though the police stations may be different i.e. Police Station Arki and Dharlaghat but the villages are close to each other. 10. The statement of PW-11 Amit Kumar as recorded in Court is that the murder took place in his presence and thereafter he got scared and ran way to his native village. He did not inform any friends, relatives, member of the Panchayat and the police about the crime which had happened in his presence till the police contacted him in the beginning of February, 2004. There is no doubt that Sohan Lal was murdered. It is also not disputed that the dead body was of Sohan Lal. The main issue is whether the murder was committed by Kuldeep Kumar as alleged by PW-11 or not. 11. The version of PW-11 is that the murder took place on 26.11.2003 at about 11.30 or 11.45 p.m. According to him he got scared, jumped from the truck and ran away towards Bhrarighat. He reached Bhrarighat three hours later and caught a bus to Bilaspur. At Bilaspur he took another bus for his native village. He did not disclose the fact that he had seen such a heinous act committed in his presence to any person except to Mohinder Singh brother of Kuldeep Kumar. He reached Bhrarighat three hours later and caught a bus to Bilaspur. At Bilaspur he took another bus for his native village. He did not disclose the fact that he had seen such a heinous act committed in his presence to any person except to Mohinder Singh brother of Kuldeep Kumar. He informed the police only after the police constable from Arki Police Station came to his village to call him to the Police Station on 1.2.2004 i.e. more than two months after the occurrence. The learned trial Court held, and in our opinion rightly so, that a man who sees another person committing a murder would have informed somebody about the commission of the crime. In the present case, according to PW-11 he did not inform his family members, the police, any other persons or authority about what he had seen. He has given no explanation whatsoever for not narrating this incident to anybody. He was never threatened by the accused. 12. Assuming for the sake of argument that the incident had put fear into the mind of the witness, if in fact he had seen the incident he would have gained courage in a few days to report this matter to the authorities. He only informed accused No.2 and none else about the incident and this behaviour on his part is totally abnormal and casts a doubt on his testimony. In fact if he was scared that the accused may harm him he would have stronger reason to inform his other family members about the incident so that they could protect him. His conduct in remaining silent for almost two months renders his version unreliable. Furthermore the possibility of the offence being committed by this witness or his being an accomplice to the crime cannot be ruled out because it was he who ran away from the scene of occurrence, remained absent from his work and kept quiet about it. Admittedly this witness says that he knows the entire family of the accused and the deceased. Even if he did not want to disclose his name he could have made an anonymous call or sent an anonymous letter to the family members of Sohan Lal about the incident. The statement of this witness cannot be relied upon. 13. There is another contradiction in the statement of Amit Kumar. Even if he did not want to disclose his name he could have made an anonymous call or sent an anonymous letter to the family members of Sohan Lal about the incident. The statement of this witness cannot be relied upon. 13. There is another contradiction in the statement of Amit Kumar. In his examination he stated that when he and the accused reach Chamakhri-pul Sohan Lal met them while sitting in a Dhaba. However, in cross-examination he stated that he did not see the deceased sitting in a Dhaba and that Kuldeep Kumar alone had got down from the truck to call Sohan Lal. The needle of suspicion pointed towards this witness also and therefore, it would be highly imprudent to rely upon his testimony. 14. There are material contradictions in the statement of PW-11 Amit Kumar and other prosecution witnesses. According to PW-11 on 26.11.2003 he was deputed on truck No. HP-11-1558 owned by the accused. He took the truck for repairs to a work-shop in village Chamla. At about 8.00 p.m accused Kuldeep Kumar came there, sat in the driver’s seat and asked PW-11 to accompany him. They then went to Chamakhri-pul where Kuldeep Kumar stopped the truck and went to call Sohan Lal, who was sitting in a Dhaba. The version of Amit Kumar is that he kept sitting in the truck when Kuldeep Kumar went to call Sohan Lal. This version is totally contrary to the version of PW-9 Bhandaru Ram. According to this witness he and deceased Sohan Lal sat in a Dhaba at Chamakhri-pul and consumed liquor. PW-11 Amit Kumar came to the Dhaba and met Sohan Lal. He told Sohan Lal that he was being called by the accused persons. This witness was declared hostile and cross-examined but the fact remains that he did not corroborate the testimony of PW-11 Amit Kumar. If Bhandaru Ram is telling the truth then it was Amit Kumar who called Sohan Lal from the Dhaba to the truck and the presence of Kuldeep Kumar at Chamakhri-pul is not proved. 15. The post mortem was conducted on 30.11.2003 at about 2.00 p.m. According to the report the death had taken place at least 24 hours earlier but less than 72 hours. 15. The post mortem was conducted on 30.11.2003 at about 2.00 p.m. According to the report the death had taken place at least 24 hours earlier but less than 72 hours. 72 hours would begin from at about 2.00 p.m on 27.11.2003 whereas according to PW-11 the murder took place on the night intervening 26th and 27th November, 2003 which would make the death about 84 hours before the postmortem. Thus there is a material discrepancy here also. According to PW-2 she used to go to the area, where the dead body of Sohan Lal was found, almost daily. She states that she did not see the dead body before 29th November and according to her on 28th November, 2003 she had not visited the site since she had gone to her parental house but she clearly stated that she had gone to the area in question on 27th November, 2003 and had not noticed the body on that day. Assuming that the body may not have been visible since it was behind the bushes, if PW-2 could notice the blood stained blanket in the bushes on 29.11.2003 she could have noticed the same on 27.11.2003 also if the blanket had been there. 16. Further as found by the learned trial Court the injuries could not have been caused in the manner mentioned by the witnesses. Some of the injuries, such as, those on the upper lip and the removal of the left ear lobe were sharp edged and could not have been caused by the tyre lever. 17. As far as extra judicial confession is concerned, PW10 to whom the accused had made the confession, has not supported the prosecution case. He has denied that any extra judicial confession was made to him by the accused. He also does not support the prosecution version that the accused came to his house on the night intervening 26th and 27th November and took him to a water source where he washed his blood stained clothes, etc. In fact this second allegation makes no sense because even according to the prosecution the accused and the deceased had consumed liquor at a place near Piplughat where there was also water source. Why would a person who had committed a murder tell anybody else about the murder and ask him to help to remove the blood stains? 18. In fact this second allegation makes no sense because even according to the prosecution the accused and the deceased had consumed liquor at a place near Piplughat where there was also water source. Why would a person who had committed a murder tell anybody else about the murder and ask him to help to remove the blood stains? 18. One of the circumstance relied upon by the prosecution is that when the two accused, their third brother and father were shown the photographs of the dead body they denied that the body was of Sohan Lal. This has been stated by PW-21 Kanwar Singh Gularia, Investigating Officer. The dead body was badly mutilated and the body was found three days later. The other persons from the village also could not recognize the person from the photographs. Therefore, it cannot be said that the accused deliberately could not identify the photographs of Sohan Lal. In fact, it has not been proved by the prosecution that the accused refused to identify the person in the photographs to be Sohan Lal. 19. The motive ascribed by the prosecution for the alleged murder is that the deceased was planning to change his Will which he had executed in favour of the two accused and their third brother. Other than the statement of Amit Kumar, the alleged eye witness, no witness has been produced by the prosecution in this behalf. The real brother of the deceased who deposed about the execution of the Will by the deceased in favour of the accused and their third brother, has not stated that his brother wanted to change the Will. 20. In view of the above discussion, we are of the considered opinion that the learned trial Court was fully justified in acquitting the accused. We find no merit in the appeal, which is accordingly dismissed. The bail bonds furnished by the accused are ordered to be discharged.