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2013 DIGILAW 608 (HP)

Amar Singh v. State of H. P.

2013-06-27

SANJAY KAROL

body2013
JUDGMENT Sanjay Karol, Judge (Oral) Assailing the judgment dated 22.7.2006, passed by learned Additional Sessions Judge, Solan District Solan in Session Trial No.4-NL/7 of 2003, titled as State of Himachal Pradesh versus Amar Singh and others, the appellants have filed the present appeal under the provisions of Section 374(2) of the Code of Criminal Procedure, 1973. 2. It is the case of the prosecution that on 19.7.2002, Santokh Singh (PW-2) alongwith his bother Gurmeet Singh (PW-1) was travelling on a scooter. At about 9:30/9:45 pm when they reached near Leather Factory at Nalagarh, the accused persons, namely Amar Singh, Darshan Singh and Shamsher Singh started abusing and assaulted them with deadly weapons. Amar Singh had an Axe, Darshan Singh had a Darat and Shamsher Singh was carrying a Danda. Santokh Singh sustained grievous injuries. Somehow Gurmeet Singh (PW-1) managed to flee away from the spot and cry for help. Jasbinder (PW-3) nephew (Bhanja) of Santokh Singh arrived at the spot. Thereafter Gurmeet Singh and Jasbinder Singh took Santokh Singh to a hospital at Nalagarh in a Maruti car. After administering first aid, Dr. Kuldeep Jaswal (PW-5) referred the patient for further treatment to P.G.I. hospital at Chandigarh. Doctor informed the police about the incident. In the hospital at Nalagarh, police recorded statement (Ex.PA) of Gurmeet Singh (PW-1) which was sent to Police Station, Nalagarh where F.I.R. No.118/2 dated 19.7.2002 (Ex.PW9/A) was registered by Sh. Anant Ram (PW-9). The matter was investigated by Yogesh Joshi (PW-12). He arrested accused Amar Singh and Darshan Singh on 20.7.2002 and accused Shamsher Singh on 23.7.2002. Same day, in the presence of witness Darshan Singh (PW-8), accused Darshan Singh and Shamsher Singh made disclosure statements (Ex.PA and Ex.PC), on the basis of which, weapons of offence namely, Danda (Ex.P-1), Darat (Ex.P-2) and Axe (Ex.P-3) were recovered. At P.G.I., Chandigarh, injured Santokh Singh was examined by Dr. Rajesh Chhabra (PW-13) who issued M.L.C. (Ex.PW13/A). With the completion of investigation, Challan was presented in the Court for trial. 3. All the accused persons were charged for having committed offences punishable under the provisions of Sections 341, 323, 325, 307 read with Section 34 of the Indian Penal Code, to which they did not plead guilty and claimed trial. 4. In order to establish its case, in all, prosecution examined as many as thirteen witnesses. 3. All the accused persons were charged for having committed offences punishable under the provisions of Sections 341, 323, 325, 307 read with Section 34 of the Indian Penal Code, to which they did not plead guilty and claimed trial. 4. In order to establish its case, in all, prosecution examined as many as thirteen witnesses. Statements of the accused under the provisions of Section 313 of the Code of Criminal Procedure, were also recorded, in which all took plea of false implication and accused Amar Singh stated that Santokh Singh was beaten up by Bihari labourer, whose wife he used to tease. 5. Relying upon the testimonies of Gurmeet Singh (PW-1), Santokh Singh (PW-2) and Jasbinder Singh (PW-3), the trial Court convicted all the accused persons of all the charged offences and sentenced each of them to undergo rigorous imprisonment for a period of three years and pay fine of Rs.5,000/- each for offence punishable under Section 307 read with Section 34 of the Indian Penal Code; undergo rigorous imprisonment for a period of six months and pay fine of Rs.500/ each for the offence punishable under Section 323/34 IPC; undergo rigorous imprisonment for a period of two years for the offence punishable under Section 325/34 IPC and pay fine of Rs. 1,000/- each; undergo simple imprisonment for a period of one month and pay fine of Rs.500/- each for the offence under Section 341/34 of the Indian Penal Code. In default of payment of fines they were to further undergo imprisonment for a period of six months, one month, six months and 15 days in respect of offences punishable under Sections 307, 323, 325, 341/34 of the Indian Penal Code respectively. All the aforesaid sentences were to run concurrently. Hence, the present appeal. 6. Challenge to the conviction is on the ground that testimonies of the prosecution witnesses, uninspiring in confidence, apart from being inherently contradictory, do not establish the prosecution case. Also defence of the accused, stands probablized from the admissions made by some of the witnesses. The trial Court judgment is not based on sound principles of appreciation of testimonies of the prosecution witnesses, which has resulted into travesty of justice causing grave prejudice to the appellants. 7. Conviction is based on the testimonies of relevant prosecution witnesses, Shri Gurmeet Singh (PW1), Sh. Santokh Singh (PW-2) and Jasbinder Singh (PW-3). The trial Court judgment is not based on sound principles of appreciation of testimonies of the prosecution witnesses, which has resulted into travesty of justice causing grave prejudice to the appellants. 7. Conviction is based on the testimonies of relevant prosecution witnesses, Shri Gurmeet Singh (PW1), Sh. Santokh Singh (PW-2) and Jasbinder Singh (PW-3). What heavily weighed with the trial Court was the injuries sustained by PW-2 on his head. Considering the fact that he had been assaulted with a sharp edged weapon(s), even though injury being simple in nature, there was clear intent on the part of the accused to have caused his death. 8. To begin with, it be only observed that police has not fairly investigated the matter in its entirety. Gurmeet Singh (PW-1) states that when the accused persons assaulted them, he went to a nearby shop. He also admits that at the time of occurrence of the incident, 2-3 labourers were present on the spot. Both PW-1 and PW-3 state that they carried Santokh Singh from the spot to the hospital at Nalagarh-a distant place-in a Maruti car. They do not disclose the number of the vehicle or the name of the driver. Be that as it may, the fact of the matter is that the police neither bothered nor tried to associate any one of such persons during investigation. Their testimonies would have thrown some light with regard to the actual occurrence of the incident on the spot. 9. It be also observed that prosecution failed to establish the events which took place, from the time the Doctor informed the police. Investigating Officer (PW-12) simply states that he is not aware about the proceedings which were conducted prior to the investigation entrusted to him. 10. He proceeded to the hospital where he recorded statement of PW-1, on the basis of which, F.I.R. was registered. It has come on record through the testimony of Prem Lal (PW-10), that statement of PW-2 was recorded on 21st July, 2002. PW-2 states that he regained consciousness on the second day but does not state that police ever recorded his statement. Be that as it may, it is seen that there is one statement on record. When confronted with this statement (Ex.D-1), PW-2 denies having made statements Mark A to A, B to B, C to C and D to D which version stands contradicted by PW-10. Be that as it may, it is seen that there is one statement on record. When confronted with this statement (Ex.D-1), PW-2 denies having made statements Mark A to A, B to B, C to C and D to D which version stands contradicted by PW-10. The contradictions, embellishments, improvements and retractions are material and render the testimonies of the witnesses to be absolutely shaky. He denies to have had any conversation with accused Amar Singh which version, in any event stands contradicted by PW-1 according to whom Amar Singh had hurled abuses at him. Further he denies having made any statement about PW-1 leaving the spot and raising alarm or for that matter his nephew Jasbinder Singh (PW-3) arriving at the spot. He also denies getting treatment first at Nalagarh and thereafter taken to P.G.I. Chandigarh for further treatment. 11. Significantly, on the question of recovery of weapons of offence, with which the accused allegedly assaulted PW1 and PW-2, there is glaring contradiction on record. According to Darshan Singh (PW-8) disclosure statement was made by accused Darshan Singh and Shamsher Singh at the Police Station, Nalagarh on 27.7.2002. Whereas as per version of PW-12, it was so done on 23.7.2002. Not only that, it appears that version of the police with regard to recovery of the weapons, effected pursuant to such disclosure statement also stands falsified through the version of PW-8 according to whom, Axe and Darat were lying open and quite visible. Hence disclosure statement looses its significance as it has not resulted into recovery of a concealed weapon. In this regard, PW-1 has also come out with a totally different version. He states that weapons of offence were in fact lying on the spot. Now if this were so, then why is it that PW-12 did not recover the same on 20.7.2002 when he visited there. Not only that, PW-1 goes on to state that in fact weapons of offence were brought by the accused and none was present at the time of such recovery. The prosecution story with regard to disclosure statement and recovery of weapons thus stands contradicted and belied on record. 12. The defence of the accused stands probablized from the admission of PW-1 who admits presence of 2-3 labourers on the spot. Though PW-2 denies such suggestion, but however considering the fact that his testimony itself does not inspire confidence, it stands probablised. 12. The defence of the accused stands probablized from the admission of PW-1 who admits presence of 2-3 labourers on the spot. Though PW-2 denies such suggestion, but however considering the fact that his testimony itself does not inspire confidence, it stands probablised. 13. Coming to the actual occurrence of the incident, I find that there is inherent contradiction in the versions of PW-1 and PW-2. According to PW-1, all the accused persons hurled abuses at them which fact is not so stated by PW-2. Further PW-1 states that the accused gave beatings both to him and PW-2 with the weapons, whereas according to PW-2, only he was assaulted by the accused. PW-1 states that he got scared and fled away from the spot and also raised alarm. This version does not inspire confidence. Why would a young and an able bodied person leave his elder brother alone. That apart, he states that he “entered in a shop”. Now significantly, spot map prepared on the spot does not disclose existence of any such shop. Also, police has not bothered to inquire about the owner of the shop, who all were present therein and what help did this witness seek from there. 14. It be also observed that PW-1 admits that the place of occurrence of the offence is a very busy road. There are 20/25 hutments/Khokhas close by. None from the neighborhood have been associated during investigation. Why so has not been explained? 15. PW-1 admits that PW-2 suffered 15-16 injuries on his body which version stands contradicted and belied by the medical evidence so proved by PW-5 and PW-13. 16. As per the version of Doctor (PW-5), Santokh Singh sustained the following injuries:- “1. Cut lacerated wound left shin a middle portion 4”x 3cm x 2cm. Redish brown clotted blood present. 2. Cut lacerated left index finger above 2nd interphalangeal joint with underlying fracture size 3cm x 1cm x 2mm. 3. Multiple cut lacerated would over whole of scalp extending from occipital region to frontal region over whole circumference of scalp with query fracture of underlying bone.” 17. Report obtained from the Forensic Science Laboratory, Junga could not link the weapons to the injury in so far as the sampling of the blood is concerned. 18. 3. Multiple cut lacerated would over whole of scalp extending from occipital region to frontal region over whole circumference of scalp with query fracture of underlying bone.” 17. Report obtained from the Forensic Science Laboratory, Junga could not link the weapons to the injury in so far as the sampling of the blood is concerned. 18. The case of the prosecution that injured Santokh Singh who fell unconscious on the ground was carried in a Maruti car to the hospital at Nalagarh stands absolutely shattered through the testimony of PW-5 according to whom, the patient came all alone at the time of examination and was in a semi conscious state of mind. 19. This further renders the testimony of PW-2, to the effect that immediately after sustaining injuries he fell unconscious and regained consciousness only on the second day at P.G.I. Chandigarh, to be false and incorrect. 20. Hence, in my considered view, with regard to actual occurrence of the events, prosecution has not been able to establish its case by leading clear cogent, reliable and believable piece of evidence. 21. Presence of Jasbinder Singh (PW-3) at the spot, so narrated by him, appears to be doubtful as his testimony does not inspire confidence. He lives in a different village. Though he states that he was going to village Saner from Nalagarh but does not disclose the purpose of his visit and that too in the late hours of night. Also, he does not disclose the mode of his transportation. He states that he was just 15-20 yards away from the place where PW-1 raised hue and cry. Had it been so, he would have immediately rushed to the spot, as according to PW-1 assailants continued to attack for more than 1520 minutes. Also he could not disclose the number of injuries which were sustained by Santokh Singh. In Court he was confronted with his earlier statement so recorded by the police which only reveals that he has made several improvements there upon. He appears to have been introduced as a witness later on. 22. Hence, testimonies of the prosecution witnesses are totally unbelievable. They do not inspire confidence and establish the prosecution case beyond reasonable doubt. 23. In Court he was confronted with his earlier statement so recorded by the police which only reveals that he has made several improvements there upon. He appears to have been introduced as a witness later on. 22. Hence, testimonies of the prosecution witnesses are totally unbelievable. They do not inspire confidence and establish the prosecution case beyond reasonable doubt. 23. It cannot be said that all the accused persons, with an intent to cause murder of Santokh Singh assaulted him with deadly weapons, as a result of which he sustained simple and grievous injuries. It also cannot be said that all the accused persons wrongly restrained PW-1 and PW-2 or that there was any conspiracy on the part of the assailants to commit the crime. 24. Trial Court, in my considered view, erred in correctly and completely appreciating the testimonies of prosecution witnesses which has resulted into travesty of justice causing serious prejudice to the accused. 25. The prosecution has not been able to establish its case beyond reasonable doubt, by leading clear, cogent, creditworthy, relying and independent piece of evidence. 25. Hence for all the aforesaid reasons, present appeal stands allowed. The judgment of conviction and sentence so passed by the trial Court stands set aside. Accused persons are acquitted of all the charged offences. Bail bonds furnished by the accused are discharged. In view of the above, present appeal stands disposed of, so also the pending application(s), if any.