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2016 DIGILAW 1433 (HP)

State of Himachal Pradesh v. Sanjeevan Singh

2016-07-20

AJAY MOHAN GOEL, SANJAY KAROL

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JUDGMENT : Ajay Mohan Goel, J. By way of present appeal, the State has challenged the judgment passed by the Court of learned Additional Sessions Judge (II), Kangra at Dharamshala in Sessions Case No. 20-N/VII/2006 dated 25.09.2008 vide which, learned trial Court has acquitted the accused for commission of offence under Sections 307, 333 read with Section 34 of the Indian Penal Code. 2. During the pendency of the present appeal, accused No. 2 has died on 07.11.2012. As such, the appeal qua him stands abated. 3. The case of the prosecution was that on 10.10.2004, complainant Ravinder Singh reported that he was a driver in HRTC, Pathankot Depot and on the said day, he was driving bus bearing registration No. HP-38A-3721 on route from Shimla to Suliali alongwith conductor Bidhi Singh. When the said bus reached village Khajjan at around 9:20 p.m., there was a tractor parked on the road side and 2-3 persons were standing on the road. At that time, there were about five passengers in the bus. The complainant blew horn, however, the persons did not move from the road. Thereafter, he requested these persons to move away from the road, but in the meantime, Sanjeevan and Narinder, R/o Khajjan caught him from the collar of his uniform and dragged him to the road from the driver seat and started giving beatings to him. The buttons of his shirt were broken and the pockets were torn. Conductor Bidhi Singh came out from the bus to intervene and on hearing the noise, Shri Dev Raj, Roop Lal and Yogesh Kumar also came out but Narinder Pathania and Sanjeevan Pathania gave beatings to all of them and tractor driver Chaman Lal gave a blow on the head of Yogesh Kumar with an iron rod (Wheel Panna) and inflicted injuries on his head. As per the complainant, all the said three persons obstructed him in discharging his official duty by giving him beatings and tearing off his uniform. On the basis of the said complaint, FIR was lodged and medical examination of complainant as well as injured Yogesh Kumar was carried out. As per the complainant, all the said three persons obstructed him in discharging his official duty by giving him beatings and tearing off his uniform. On the basis of the said complaint, FIR was lodged and medical examination of complainant as well as injured Yogesh Kumar was carried out. Yogesh Kumar was referred for skull X-ray and C.T. Scan to Dharamshala and thereafter to Shimla/Chandigarh and ultimately, he was referred to All India Institute of Medical Sciences, New Delhi and the doctor opined that the nature of injuries of the complainant were simple and of injured Yogesh Kumar were grievous and dangerous to life. 4. During the course of investigation, clothes of the complainant and injured Yogesh Kumar were taken into possession. On the basis of the disclosure statement of accused Chaman Lal, the weapon of offence, i.e. iron rod was also recovered. After completion of the investigation, challan was presented against the accused and as a prima facie case was found against the accused, they were charged for the commission of offence under Section 307 and 333 read with Section 34 of the Indian Penal Code. The accused pleaded not guilty and claimed trial 5. In order to substantiate its case, the prosecution examined 15 witnesses. 6. On the basis of material produced on record by the prosecution, learned trial Court came to the conclusion that the prosecution had failed to prove that on 10.10.2004 all the accused in furtherance of their common intention had inflicted injuries to the injured with intention and knowledge that such injuries would have caused death of the injured and further that the accused voluntarily caused hurt to complainant Ravinder Singh and prevented and deterred him from discharging his official duty. Accordingly, learned trial Court acquitted the accused from the charges which were framed against them on the ground that the prosecution had failed to prove the same. 7. Feeling aggrieved by the said judgment of acquittal, the State has filed the present appeal. 8. We have heard the learned counsel for the parties and also gone through the records of the case as well as the judgment passed by the learned trial Court. 9. In order to prove its case, the prosecution in all examined 15 witnesses, whereas one witness was examined by the defendant. 10. Injured Yogesh Kumar has entered the witness box as PW-1. 9. In order to prove its case, the prosecution in all examined 15 witnesses, whereas one witness was examined by the defendant. 10. Injured Yogesh Kumar has entered the witness box as PW-1. He has stated that he was running a shop at Indora dealing with electric appliances and was a resident of Village Khajjan. On 10.10.2004, he was coming to his house in HRTC bus which was on route from Shimla to Suliali. When he was about to reach his destination, where there was a bus stop near his house, a tractor belonging to Narinder Pathania was parked on the road and Narinder Pathania was accompanied by Sanjeevan Pathania alongwith Chaman Lal and all of them were standing on the road with their tractor. The driver of the bus blew horn, but neither the persons moved from the road nor they removed the tractor. When the driver asked the said person from his seat to move around, they started having altercation with the driver of the bus and pulled him down from his seat. In the meanwhile, Conductor of the bus and he also got down and saw that accused were giving beatings to the driver of the bus. He further deposed that when he tried to save the driver, accused Narinder asked Chaman Lal to beat him and Chaman Lal hit him on his head with iron rod. He also stated that he identified all the accused as they were from his village. He further deposed that he became unconscious as a result of the injury and regained his consciousness after his surgery at Delhi. 11. Ravinder Singh, complainant has entered the witness box as PW-2 and has reiterated his version as was contained in FIR which was lodged by him. He deposed that when the accused who was standing in the middle of the road did not budge despite his repeated blowing of horn, he asked them from his seat to remove the tractor from the road, on which, the accused pounced on him and dragged him outside the Bus. He has also deposed that in the meanwhile Conductor, Yogesh and other persons came out and intervened to save him. But, accused brought an iron rod and hit Yogesh on his head with the said rod, who sustained injury and fell down. He also deposed that buttons of his shirt were broken and his pockets were torn. He has also deposed that in the meanwhile Conductor, Yogesh and other persons came out and intervened to save him. But, accused brought an iron rod and hit Yogesh on his head with the said rod, who sustained injury and fell down. He also deposed that buttons of his shirt were broken and his pockets were torn. He has also stated that he was conversant with the accused since he used to drive the bus on the same route. 12. PW-3 Bidhi Singh has stated that on 10.10.2004, he was Conductor on the bus in issue and he has also supported the case of the prosecution and narrated the happening of the events. 13. PW-4 Rajesh Kumar, R/o Village Khajjan has deposed that on 10.10.2004, he heard some noise out side the road as some one called to save him, so he went to the spot at around 9:30 p.m. and saw that the accused were having altercation with the driver of HRTC bus and Yogesh Kumar who tried to intervene in the matter to save the driver was hit with iron rod (wheel panna) on his head. Yogesh Kumar fell down and the accused ran away from the spot. Yogesh Kumar became unconscious and he was brought to Nurpur hospital from where he was referred to Dharamshala and from Dharamshala he was shifted to All India Institute of Medical Sciences, New Delhi. In his cross-examination, he has stated that Yogesh was his real brother and his house was at a distance of 10/12 meters from where the bus stopped. 14. Rajni Kiran has entered the witness box as PW-5 and stated that she was associated by the police during the course of investigation and that on 26.10.2004, she was associated during investigation when accused Chaman made a disclosure statement to the effect that he had concealed the weapon of offence, i.e. iron rod under the bushes in Khajjan village. She is also witness to the recovery memo vide which wheel panna was recovered, i.e. Ex. PW6/B. 15. PW-6 Vijay Kumar, PW-7 Surjit Kumar, PW-8 Shyam Sunder, PW-9 Manoj Kumar, PW-10 Ranjit Singh, PW-12 Kamaljit and PW-15 Inspector Nathu Ram are formal witnesses. 16. PW-11 Dr. She is also witness to the recovery memo vide which wheel panna was recovered, i.e. Ex. PW6/B. 15. PW-6 Vijay Kumar, PW-7 Surjit Kumar, PW-8 Shyam Sunder, PW-9 Manoj Kumar, PW-10 Ranjit Singh, PW-12 Kamaljit and PW-15 Inspector Nathu Ram are formal witnesses. 16. PW-11 Dr. Suman Suxena has deposed that on 10.10.2004, she was posted as Medical Officer at CHC Nurpur and she had examined Ravinder Singh whom she found to be having restricted movement of left index finger joint. She advised X-ray of left hand finger and after X-ray, no evidence of fracture was found and nature of injury found to be simple with hard and blunt weapon. She further deposed that on the same day Yogesh was also brought, who was disoriented and not responding to the questions asked. There were two lacerated wounds in the scalp. There was suspected depressed fracture of left parital bone. X-ray report revealed that there was depressed fracture of left parital bone and the injury was found to be grievous with blunt and hard weapon and the injury in issue could be caused by wheel panna. In her cross-examination, she admitted it to be correct that injuries on the person of Ravinder Singh could be caused in a fall and injuries on the person of Yogesh could be caused if a person while running, strikes against a stationary vehicle having iron rods/pipes with the stairs on the rear side of the vehicle. 17. PW-13 Head Constable has deposed that file was handed over to him for investigation. Shirt of the complainant was taken into possession vide Ex. PW2/B. He also deposed that he recorded the supplementary statement of complainant Ravinder and he also recorded statement of PW-1 Sunil Kumar. He has also stated that he obtained copy of appointment letter and extract of duty register etc. 18. PW-14 Kishan Gopal has deposed that on 11.10.2004 file was handed over to him for investigation. On 20.10.2004, he moved an application to the doctor seeking opinion as to whether injury to the injured was dangerous to life. He has also stated that he arrested accused Chaman Lal and Sarjeevan. According to him, accused Chaman made a disclosure statement disclosing therein as to where he had thrown the wheel panna which was recorded in the presence of witnesses and which led to the recovery of weapon of offence. He has also stated that he arrested accused Chaman Lal and Sarjeevan. According to him, accused Chaman made a disclosure statement disclosing therein as to where he had thrown the wheel panna which was recorded in the presence of witnesses and which led to the recovery of weapon of offence. He also deposed that he recorded the statements of witnesses under Section 161 Cr. P.C. 19. The defence examined Vijay Kumar, Junior Engineer, IPH Sub Division, Nurpur as DW-1, who has deposed that on 10.10.2004, Narinder Singh, Pump Operator remained on duty at Pump House from 9 p.m. to 6.15 a.m. as per extract of log book Ex.-DW1/A. 20. We will first of all deal with the disclosure statement of Chaman Lal, which is on record as Ex. PW5/A. This disclosure statement is dated 26.10.2004. The statement is alleged to have been made before two witnesses, namely Rajni Kiran (PW-5) and Bashirdeen. It is mentioned in the disclosure statement which was given by the accused in the custody that he has hidden one iron panna below the road in village Khajjan, which he can get recovered after getting the place demarcated. PW-5 Rajni Kiran in her statement has deposed with regard to the said statement having been made in her presence by accused Chaman Lal. In her cross-examination, she has stated that on 26.10.2004, she went to the Police Station between 4-5 p.m. She has further deposed that when she had gone to the police, she was accompanied by one Narinder. She has also stated that on 26.10.2004, she signed both the memos at the same time. She further deposed that “I signed both the memos on 26.10.2004 after the recovery of iron rod/panna, Ex. P-2. On 26.10.2004, I went to the spot all alone with the police and Nandu @ Narinder did not accompany me and there were no other person except police.” Incidentally, said Shri Narinder who allegedly accompanied Rajni Kiran to the Police Station is not a witness to the disclosure statement made by Chaman Lal. Recovery which has been effected on the basis of this disclosure statement has been made vide memo Ex. PW5/B. This recovery memo is signed by Rajni Kiran and Bashirdeen. Recovery which has been effected on the basis of this disclosure statement has been made vide memo Ex. PW5/B. This recovery memo is signed by Rajni Kiran and Bashirdeen. However, as per the statement of Rajni Kiran, on 26.10.2004, she went to the spot alongwith with the police and she has categorically stated that neither Narinder accompanied her nor there was any other person except police. If that is correct, then recovery memo Ex. PW5/B becomes suspicious because as per said recovery memo, the recovery has been effected in the present of Rajni Kirin and Bashirdeen. Incidentally, Bashirdeen who was attesting witness both to the disclosure statement as well as recovery memo Ex. PW5/A and Ex. PW5/B has not been examined by the prosecution. 21. In our considered view, the discrepancies and contradictions in the statement of PW-5 vis-à-vis the recording of disclosure statement and recovery of weapon of offence on the basis of said disclosure statement cast grave and serious doubts about the disclosure statement having been made by accused Chaman in the mode and manner in which the prosecution wants us to believe and further with regard to the alleged recovery of the weapon of offence on the basis of the said disclosure statement. 22. Therefore, the deposition of PW-5 Rajni Kiran neither inspires confidence nor the same appears to be trustworthy so as to be made the basis of convicting the accused. Even otherwise, with regard to Section 27 of the Act, what is important is discovery of the material object at the disclosure of the accused but such disclosure alone would not automatically lead to the conclusion that the offence was also committed by the accused. The burden lies on the prosecution to establish a close link between discovery of the material object and its use in the commission of the offence. What is admissible under Section 27 of the Act is the information leading to discovery and not any opinion formed on it by the prosecution. 23. At this stage, it is relevant to refer to the statements made by the accused under Section 313 Cr. What is admissible under Section 27 of the Act is the information leading to discovery and not any opinion formed on it by the prosecution. 23. At this stage, it is relevant to refer to the statements made by the accused under Section 313 Cr. P.C., wherein they have denied the allegations levelled upon them and in their defence have stated that they were going on the extreme left side of the road when the driver of the bus suddenly brought the bus on the extreme left side of the road and they had to jump to save their lives and when they asked the driver why he had suddenly brought the bus on extreme left side of the road without giving any signal, the driver started altercation without any cause and in the meantime Yogesh Kumar also came out hurriedly and in the process, he was struck with rods of the bus, as a result of which he sustained injuries. 24. In the backdrop of what has been observed above, now we will make a close scrutiny of the statements of prosecution witnesses. In the present case, driver of HRTC bus Ravinder Singh is the complainant and injured person is Yogesh Kumar. It is an admitted fact that the alleged incident has taken place just 7-8 meters away from the house of Yogesh Kumar. In his cross-examination, Yogesh Kumar (PW-1) has initially stated that PW-2 Ravinder Singh, driver of the bus was not related to him and thereafter he has admitted the suggestion that PW-2 Ravinder Singh was married to his cousin sister Reeta. Incidentally, it is apparent from the case of the prosecution that at the time when the alleged incident took place, there were about 5 passengers in the bus. However, no independent witness has been examined by the prosecution in the present case who was also travelling in the bus at the relevant time. In his cross-examination, Yogesh has admitted that Roop Lal and Dev Raj are his cousins and that the houses of these persons are also adjacent to his house in the village. He also admitted that the sound of stoppage of the bus was heard in the houses of these persons adjacent to the bus stoppage. He has also admitted that the house of Pancham Dutt Sharma is also adjacent to the road. He also admitted that the sound of stoppage of the bus was heard in the houses of these persons adjacent to the bus stoppage. He has also admitted that the house of Pancham Dutt Sharma is also adjacent to the road. Thus, it is apparent from his deposition that the place where the alleged incident took place is not a secluded place. Despite this, the prosecution has not associated any independent person from the nearby area. Besides the statements of driver, conductor and Yoresh Kumar, the prosecution has examined one Rajesh Kumar, who happens to be the real brother of injured Yogesh Kumar. In fact, a perusal of the records demonstrates that PWs. Dev Raj, Roop Lal, Kiran Kumari and Suman Kumari were given up as unnecessary. This witness has also admitted it to be correct in his cross-examination that there are shops on both sides of the road where bus was stopped. 25. Now, we will refer to the statement of the complainant (PW-2). This witness has deposed that when the bus driven by him reached near village Khajjan at about 8:20 p.m., there was a tractor parked in the middle of the road and three boys were standing by the side of the said tractor. He has further deposed that the bus reached near village Khajjan at around 8:20 p.m., however, a perusal of the contents of the FIR demonstrates that in the said FIR he has stated that the bus reached village Khajjan at 9:20 p.m. Another important contradiction in what is recorded in the FIR and what he has deposed in the Court is that in FIR it is mentioned that two three persons had parked the tractor on the side of the road and were standing in the middle of the road. When despite his blowing horn, the said persons did not vacate the road, he asked them to do so and on this, they got agitated and caught hold of him from his collar and dragged him down from the bus and started beating him. However, the version which he has given in the Court is totally different. When despite his blowing horn, the said persons did not vacate the road, he asked them to do so and on this, they got agitated and caught hold of him from his collar and dragged him down from the bus and started beating him. However, the version which he has given in the Court is totally different. In the Court, he has stated that the said persons had parked the tractor in the middle of the road and when he asked them to remove the same from the middle of the road, this agitated the accused and they pounced upon him and dragged him outside the bus. In his cross-examination, PW-2 has disclosed that Roop Lal, Dev Raj and Yogesh Kumar reached the spot from the house of his in-laws when the occurrence took place, alongwith Rajesh Kumar, who was his real brother-in-law. Incidentally, a perusal of the FIR demonstrates that it is not mentioned therein by the complainant that Yoresh Kumar was traveling in the bus as a passenger. On the contrary, what is recorded therein is that when the accused allegedly started beating him, conductor of the bus got down in order to save him and in the meanwhile, on account of noise, Dev Raj, Roop Lal and Yogesh also came there. 26. In our considered view, this major contradiction and discrepancy in the case of the prosecution as to how Yogesh Kumar had actually reached the spot also shrouds the case of the prosecution with great suspicion. This is more so because of the reason that complainant Ravinder Singh and Yogesh Kumar are admittedly related to each other. Not only this, the alleged incident has taken place just 7-8 meters away from the house of Yogesh Kumar as well as in a very close vicinity of the house of the in-laws of the complainant. This is evident from the fact that PW-2 himself has disclosed that he was saved by one Rajesh Kumar who came to the spot after having heard the noise and who happened to be his real brother-in-law. From the above said facts, the factum of Rajesh Kumar travelling in the said bus in his capacity as a passenger and the bus having been stopped on the whistle of the conductor by the driver at the spot where the incident took place does not seem to be cogent and plausible. 27. From the above said facts, the factum of Rajesh Kumar travelling in the said bus in his capacity as a passenger and the bus having been stopped on the whistle of the conductor by the driver at the spot where the incident took place does not seem to be cogent and plausible. 27. At this stage, it is also relevant to refer to the deposition of Dr. Suman Suxena (PA-11), who has admitted in her cross-examination that injuries observed on the person of complainant Ravinder Singh could be caused as a result of fall and the injuries which were suffered by Yogesh could have been caused if a person while running strikes against a stationary vehicle having iron rods/pipes with the staircase on the rear side of the said vehicle. 28. It is settled position of law that howsoever strong suspicion is, it cannot become a substitute for proof. In the present case, it is evident that prosecution witnesses, i.e. PW-1 Yogesh Kumar, PW-2 Ravinder Singh and PW-4 Rajesh Kumar are close relatives. Whereas Yogesh Kumar and Rajesh Kumar are real brothers PW-2 Ravinder Singh is their brother in law. Even otherwise, the testimonies of PW-1 Yogesh Kumar and PW-2 Ravinder Singh are not trustworthy because there are too many contradictions, discrepancies and inconsistencies in them which have remained unexplained. Not only this, the defence has been able to impinge their credibility during the course of cross-examination. Similarly, PW-3 Bidhi Singh is also an interested witness because he happens to be a conductor of the bus, of which PW-2 is the driver. The story as put forth by the prosecution that Yogesh Kumar (PW-1) was a copassenger in the bus does not seems to be probable. In the FIR it has not been so recorded that Yogesh Kumar was a co-passenger in the bus. On the other hand, what is recorded therein is that when the alleged scuffle took place between accused and PW-2, then on hearing noise three persons came out from the house of in-laws of PW-2 and one of them happened to be Yogesh Kumar. Not only this, the testimony of PW-5 Rajni Kiran also does not inspires any confidence as has already been discussed above. No other independent witness has been examined by the prosecution. Not only this, the testimony of PW-5 Rajni Kiran also does not inspires any confidence as has already been discussed above. No other independent witness has been examined by the prosecution. According to the prosecution, there were five passengers in the bus when the incident took place, however, none of them who could be termed to be independent witness has been examined. Further, it has not come on record as to who were the other passengers who were travelling in the bus at the relevant time. No other independent witness belonging to the adjoining area where the incident took place has been examined by the prosecution, though it has come on record that there were houses and shops at the place where incident has taken place. Therefore, in these circumstances, it cannot be said that on the basis of material on record, the prosecution has been able to prove beyond reasonable doubt that the accused are guilty of offence which have been levelled against them. 29. Further, a perusal of the judgment passed by the learned trial Court reveals that all these aspects of the matter have been minutely gone into by the learned trial Court and thereafter on the basis of the appreciation of material on record, learned trial Court has come to the conclusion that the prosecution has not been able to establish its case against the accused. We do not find any perversity or infirmity with the findings so recorded by the learned trial Court. In our considered view also, on the basis of the material produced on record by the prosecution, it has not been able to prove beyond reasonable doubt that the accused were guilty of the offence alleged against them. 30. Therefore, in our considered view, the learned trial Court has rightly concluded that the prosecution has miserably failed to prove its against the accused and has rightly acquitted the accused of the offence alleged against them. We uphold the judgment passed by the learned trial Court and dismiss the present appeal being without any merit.