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2016 DIGILAW 2471 (HP)

State of Himachal Pradesh v. Vikrant @ Vicky

2016-11-23

AJAY MOHAN GOEL, SANJAY KAROL

body2016
JUDGMENT : Sanjay Karol, J. State has filed the present Revision Petition against the judgment dated 19.9.2012, passed by learned Principal Magistrate, Juvenile Justice Board, Kullu, Himachal Pradesh, in Criminal Case No.12-I of 2010/13 of 2008, titled as State v. Vikrant alias Vicky, challenging acquittal of juvenile Vikrant (hereinafter referred to as the Juvenile), who stands charged for having committed an offence punishable under the provisions of Section 302 read with Section 34 of the Indian Penal Code. 2. It is the case of prosecution that in the night intervening 27th & 28th October, 2007, Varun Mahajan (deceased) alongwith his friends Divesh (PW-3), Lal Chand (PW-4), Arpit & Vinod Kumar (both not examined) were walking on the road somewhere at a place known as Shallang (Kullu). Juvenile Vikrant and main co-accused Manoj Kumar & Gauri Shankar, who also happened to be present there, picked up a fight and assaulted them with dandas. As a result, except Lal Chand, all received serious injuries. Soon co-accused Sanjeev Kumar arrived and forcibly took Varun Mahajan and Divesh Sharma in a vehicle (TATA SUMO). After covering some distance, he threw down Varun Mahajan and asked Divesh Sharma to deboard the vehicle. 3. Body of Varun Mahajan, who died as a result of beatings given by the juvenile and the co-accused, was first spotted by an unknown person, at a place known as Shishamati, information whereof came to be furnished on telephone at Police Post, Akhara Bazar. After recording rapat, SI Ram Karan (PW-18), immediately rushed to the spot and conducted the necessary investigation. Rukka (Ex.PW-14/A), sent to the Police Station, led to registration of FIR No.622, dated 28.10.2007 (Ex.PW-14/B), for commission of offence under Section 279/304A of the Indian Penal Code. With the preparation of inquest report and completion of other formalities on the spot, dead body, so taken into possession was sent for postmortem, which was conducted by Dr. Sushil Chander (PW-14), who issued Postmortem Report (Ex.PW-12/A). 4. In the morning of 29.10.2007, Ashok Mahajan (PW-1), father of the deceased, after reading report in the daily newspaper, about recovery of a dead body of an unidentified person, came to the police station and identified it to be that of his son. Same day, police picked-up samples of blood stained soil ( Bajri) vide memo (Ex.PW-2/A & Ex.PW-2/B), in the presence of Vinay Sharma (PW-2). Investigating Officer also prepared spot map (Ex.PW-14/C). 5. Same day, police picked-up samples of blood stained soil ( Bajri) vide memo (Ex.PW-2/A & Ex.PW-2/B), in the presence of Vinay Sharma (PW-2). Investigating Officer also prepared spot map (Ex.PW-14/C). 5. On 30.10.2007, police got Divesh Sharma (PW-3), Vinod Kumar (PW-4), Arpit (PW-5) and Lal Chand (PW-6) medically examined at a government hospital and took on record their medical record (Ex.PW-8/B, Ex.PW- 10/B, Ex. PW-10/A & Ex.PW-8/A, respectively). Their statements, under the provisions of Section 161 of the Code of Criminal Procedure, were also got recorded. 6. Also, police arrested co-accused Manoj Kumar, Gauri Shankar and Sanjeev Kumar on 30.10.2007, 31.10.2007 and 01.11.2007, respectively. 7. On 2.11.2007, Prem Singh (PW-16) handed over possession of the vehicle, allegedly used in the crime, to the police vide memo (Ex.PW-3/A), which led the police lift samples of blood vide Memo (Ex.PW-3/D), in presence of Divesh Sharma and Arpit. 8. On 6.11.2007, co-accused Gauri Shankar made a disclosure statement (Ex.PW-3/D) to the effect that he could get recovered weapons of offence, i.e. Dandas (Ex.P-6,7 & 8), which also were got recovered by him vide memo (Ex.PW-3/F), in the presence of Divesh Sharma and Arpit. 9. Police sent blood stained soil/grit ( Bajri) so lifted from the spot and samples of blood stains lifted from the vehicle, for analysis to the Forensic Laboratory and report (Ex.PB) taken on record. Also, report with regard to viscera of deceased Varun Mahajan, so issued by the State Forensic Science Laboratory, Junga was taken on record. 10. With the completion of investigation, which prima facie revealed complicity of the juvenile in the alleged crime, challan was presented in the Court for trial. 11. Juvenile Vikrant was charged for having committed an offence, punishable under the provisions of Sections 302 read with Section 34 of the Indian Penal Code, to which he did not plead guilty and claimed trial. 12. In order to establish its case, prosecution examined as many as 18 witnesses and statement of the Juvenile, under the provisions of Section 313 of the Code of Criminal Procedure, was also recorded, in which he took plea of innocence and false implication. 13. Not finding the version of the prosecution witnesses, more importantly Divesh Sharma (PW-3) and Lal Chand (PW-4), to be inspiring in confidence, trial Court acquitted the Juvenile of the charged offence. Hence, the present Revision Petition, so filed by the State. 14. 13. Not finding the version of the prosecution witnesses, more importantly Divesh Sharma (PW-3) and Lal Chand (PW-4), to be inspiring in confidence, trial Court acquitted the Juvenile of the charged offence. Hence, the present Revision Petition, so filed by the State. 14. At this juncture, we may also observe that in relation to the very same crime, co-accused Manoj Kumar, Gauri Shankar and Sanjeev Kumar were tried separately, and on the basis of separate evidence, so led by the prosecution, also stand acquitted by the learned Sessions Judge, Kullu, Himachal Pradesh, vide judgment dated 29.12.2010, passed in Sessions Trial No.22 of 2008, titled as State v. Manoj Kumar & others, which is also is subject matter of challenge in Criminal Appeal No.173 of 2011, listed along with the present petition. 15. It stands clarified that in the present petition, this Court is examining correctness of findings returned by the Principal Magistrate, in relation to Juvenile Vikrant. 16. We have heard Mr. Vikram Thakur, learned Deputy Advocate General, on behalf of the State as also Mr. Nitin Khanna, Advocate, on behalf of the Juvenile. We have also minutely examined the testimonies of the witnesses and other documentary evidence so placed on record by the prosecution. Having done so, we are of the considered view that no case for interference is made out at all. We find that the judgment rendered by the trial Court is based on complete, correct and proper appreciation of evidence (documentary and ocular) so placed on record. There is neither any illegality/infirmity nor any perversity with the same, resulting into miscarriage of justice. 17. It is a settled principle of law that acquittal leads to presumption of innocence in favour of an accused. To dislodge the same, onus heavily lies upon the prosecution. Having considered the material on record, we are of the considered view that prosecution has failed to establish essential ingredients so required to constitute the charged offence. 18. 17. It is a settled principle of law that acquittal leads to presumption of innocence in favour of an accused. To dislodge the same, onus heavily lies upon the prosecution. Having considered the material on record, we are of the considered view that prosecution has failed to establish essential ingredients so required to constitute the charged offence. 18. In Prandas v. The State, AIR 1954 SC 36 , Constitution Bench of the apex Court, has held as under: “(6) It must be observed at the very outset that we cannot support the view which has been expressed in several cases that the High Court has no power under S. 417, Criminal P.c., to reverse a judgment of acquittal, unless the judgment is perverse or the subordinate Court has in some way or other misdirected itself so as to produce a miscarriage of justice. In our opinion, the true position in regard to the jurisdiction of the High Court under S. 417, Criminal P.c. in an appeal from an order of acquittal has been stated in – ‘Sheo Swarup v. Emperor’, AIR 1934 PC 227 (2) at pp.229, 230 (A), in these words: “Sections 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. To state this, however, is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognized in the administration of justice.” 19. From the evidence led by the parties, it is evident that co-accused Manoj Kumar and Gauri Shankar were present at Shallang, the spot of alleged incident. 20. It is a matter of record, as is so admitted by SI Ram Karan (PW-18) that co-accused Manoj Kumar was administered medical treatment at a hospital at Kullu. Also, written complaint filed by this accused could not be taken to its logical end by the police. This only is indicative of unfairness on the part of police, in conducting the investigation. We may only observe that this fact, has not weighed with us at all, in adjudication of the present petition, for we have independently appreciated and evaluated the evidence led by the prosecution, considering the fact that co-accused Manoj Kumar and Gauri Shankar record their presence at Shallang. 21. From the testimony of SI Ram Karan, it is evident that in the morning of 28.10.2007, he received information from an “unknown person” that a dead body was lying on the road at Shishamati. He made entry in the Rojnamcha and proceeded to the spot. With the completion of formalities, he sent the dead body for postmortem. 22. He further states that on 29.10.2007, Ashok Mahajan (PW-1), father of the deceased, came to the police station and disclosed that his son, who had gone to attend the Dussehra festival at Kullu, was missing “for the last two days”. When taken to the mortuary, the dead body was identified to be that of his son Varun Mahajan. He further states that only thereafter, he visited the spot and in the presence of Divesh Sharma (PW-3), Vinod Kumar, Arpit and Lal Chand (PW-4), lifted blood stained Bajri, vide memo (Ex.PW-2/A & 2/B). 23. The question, which arises for consideration, is as to how did he get to know the spot of crime, for it is not his case or for that matter any one of the prosecution witnesses that by that time, the incident stood narrated by any one of them to the police. 24. 23. The question, which arises for consideration, is as to how did he get to know the spot of crime, for it is not his case or for that matter any one of the prosecution witnesses that by that time, the incident stood narrated by any one of them to the police. 24. Investigating Officer further states that on 30.10.2007, he summoned four friends of the deceased, who had also gone to watch the Dussehra Festival. They also were medically examined and their statements recorded. 25. We find the Investigating Officer not to have disclosed the whole truth. In fact, genesis of the prosecution story, of the juvenile and the co-accused having assaulted the deceased at a place known as Shallang and thereafter dumped the dead body at another place known as Shishamati, cannot be said to have been established on record. 26. Either the genesis of crime remains unearthed or the prosecution has cooked up certain facts. And, this we say so also for the reason that in Court, Divesh Sharma, a friend of the deceased, is categorical of having narrated the incident in the evening of 28.10.2007 itself. 27. Careful perusal of testimony of this witness only reveals that in the morning of 28.10.2007, he went and got himself medically examined at a hospital at Kullu and in the evening disclosed the incident. Well, this is what he wants the Court to believe. It being a different matter that even he has not revealed the truth about involvement of the juvenile in the crime. The incident was witnessed by him, then why is it that he did not go to the house of the deceased, which was just at a walking distance of 5 minutes or to the police station which also was at a walking distance of 5 to 10 minutes, to narrate or lodge the report, for after all, he was under no fear, threat or intimidation from any one of the co-accused persons, much less the juvenile. This witness wants the Court to believe that while he was walking with the deceased and two other friends, co-accused Manoj Kumar picked up a quarrel with the deceased and after hurling abuses, gave blows with Dandas. Also, co-accused Gauri Shankar and Sanjeev Kumar actively participated in the crime. This witness wants the Court to believe that while he was walking with the deceased and two other friends, co-accused Manoj Kumar picked up a quarrel with the deceased and after hurling abuses, gave blows with Dandas. Also, co-accused Gauri Shankar and Sanjeev Kumar actively participated in the crime. Soon Vicky reached the spot in a vehicle (Tata Sumo) and after lifting him and the deceased, dropped them near Kullu. Even in the vehicle, all the co-accused and the juvenile continued to give beatings to him and the deceased. 28. But when we examine the cross-examination part of his testimony, we find him to have made several improvements and exaggerations, further rendering his testimony to be absolutely uninspiring in confidence. We find his version of the juvenile having given blows with Danda or his having disclosed to the police that he was thrown down the cliff from the vehicle or the co-accused and the juvenile having dumped the body of the deceased or the juvenile having given beatings in the vehicle (Tata Sumo), not to have been recorded in his previous statement with which he was confronted. In fact, even on material aspect of the co-accused and the juvenile giving beatings to deceased Varun Mahajan or hurled abuses, we find it to be a case of exaggeration. 29. Independent witnesses Divesh Sharma (PW-3) and Lal Chand (PW-4) were declared hostile and despite extensive cross-examination by the learned Public Prosecutor, nothing fruitful could be elicited from their testimonies. Be that as it may, even otherwise, their testimonies are wholly uninspiring in confidence. They want the Court to believe that at the time of occurrence of the incident, other persons, i.e. villagers and passengers of the Bus were also present, but prosecution has not examined or associated anyone of them. In any event, on the question of identity of the assailants, both of them have not supported the prosecution. Perusal of cross-examination part of their testimonies also does not advance the case of prosecution any further. Not only there are contradictions, which are major and material, but also their testimonies are full of exaggerations, improvements and embellishments. On all these aspects, we are in agreement with the findings returned by the trial Court. 30. We may observe that none of the friends of the deceased came forward to narrate the incident to anyone, public authority, much less the police. On all these aspects, we are in agreement with the findings returned by the trial Court. 30. We may observe that none of the friends of the deceased came forward to narrate the incident to anyone, public authority, much less the police. Why is it that for two days all of them kept silent. It is not that they were under any threat; living in a remote area; having no access to police or public authority. In fact, they got themselves medically examined in the heart of Kullu town. Obviously, they were concealing the genesis of the crime. 31. As observed, testimonies of independent witnesses are full of contradictions, exaggerations and embellishments. We need not dilate thereupon, save and except that on material aspect, when they were confronted with their previous statements, they admit (a) not having known the identity of the juvenile and co-accused, (b) not having seen each one of them assault the deceased or for that matter anyone else, (c) not having reported the incident to the authorities, (d) each one of them having contradicted the testimony of the Investigating Officer as also themselves, by deposing that they went to the Police Station on 29.10.2007 and narrated the incident, thus, belying the version of Investigating Officer, who states that it was only on 30.10.2007 that these witnesses were called to the Police Station, when the incident first came to the notice of the police, (e) Contradiction in the version of Divesh Sharma that he went to the Police Station on 30.10.2007 and not 29.10.2007, (f) version of Vinod Kumar that the deceased had not consumed alcohol stands belied by medical record. He admits of having informed the incident to his parents, in the morning of 28.10.2007. In fact, he goes on to state that he went to the hospital on 29.10.2007 where he informed the incident. In fact, police came to his house on 29.10.2007, wherefrom he was brought to the Police station, where Divesh etc. were also present, thus totally belying the version of the Investigating Officer. 32. We are of the opinion that in the instant case, Investigating Officer has totally misled the Court. In Court, he states that body of an unknown person came to be found lying on the road at Shishamati, information whereof was sent to the Police Station, vide Rukka (Ex.PW-14/A), which led to registration of FIR No.622, dated 28.10.2007 (Ex.PW-14/B). 32. We are of the opinion that in the instant case, Investigating Officer has totally misled the Court. In Court, he states that body of an unknown person came to be found lying on the road at Shishamati, information whereof was sent to the Police Station, vide Rukka (Ex.PW-14/A), which led to registration of FIR No.622, dated 28.10.2007 (Ex.PW-14/B). Thereafter, he took the dead body in possession and sent it to the hospital for postmortem, which was so conducted by the doctor. The FIR records it to be a case of hit and run accident. He further states that it was only on 29.10.2007 that Ashok Mahajan (PW-1) came to the Police Station and identified the dead body to be that of his son. It is here, we find the witness to have deposed falsely, for the postmortem report (Ex.PW-12/A) categorically records identity of the deceased as also presence of his father. Postmortem was conducted in the morning of 28.10.2007 at 10.35. Such fact stands corroborated by Dr. Sushil Chander (PW-14). If that were so, then obviously version of this witness as also Ashok Mahajan about the factum of identification conducted on 29.10.2007 is false. It appears that the Investigating Officer was shielding witnesses Divesh Sharma, Vinod Kumar, Arpit and Lal Chand, who perhaps may have been involved in the incident, in relation to which complaint came to be filed by co-accused Manoj Kumar. Judicial notice can be taken of the fact that Kullu is a very small town. Also, deceased was a local resident. Thus, it is unbelievable that identity of the deceased could not be made known to the police for more than 24 hours. This very document records that the dead body came to be identified by one Anuj and Baldev Sharma (PW-8). Whereas the former remains unexamined but the latter admits presence of father of the deceased at the time of identification of the dead body. It be only observed that this witness is the real uncle (Masad) of the deceased. Obviously, the Investigating Officer has misled and not disclosed the whole truth. 33. Dr. Sushil Chander is the doctor who conducted postmortem of the deceased. As per his version, death was a result of head injury leading to intracranial haemorrhage leading to shock. Significantly, in the viscera, the Chemical Analyst found traces on ethyl alcohol to the extent of 86.8 mg%. 33. Dr. Sushil Chander is the doctor who conducted postmortem of the deceased. As per his version, death was a result of head injury leading to intracranial haemorrhage leading to shock. Significantly, in the viscera, the Chemical Analyst found traces on ethyl alcohol to the extent of 86.8 mg%. With certainty, doctor opined the deceased to have been under the influence of alcohol. 34. We may only observe that the police has not ruled out possibility of involvement of Divesh Sharma, Vinod Kumar and Arpit in the crime. Police has also not ruled out possibility of the deceased having fallen down and sustained injuries, under the influence of alcohol. 35. Even by way of corroborative evidence, prosecution has not been able to link the juvenile to the crime. Blood stained samples of Bajri (grit), so lifted from the spot of crime did not contain sufficient quantity of blood, leading the Analyst, by way of report (Ex.PB), to opine, the result of the blood group to be inconclusive. 36. Mr. Vikram Thakur, learned Deputy Advocate General, invites our attention to the disclosure statement (Ex.PW-3/B) alleged to have been made by co-accused Gauri Shankar in the presence of Divesh Sharma. In terms of Ex.PW-3/B, said co-accused disclosed that the Dandas used by him and his accomplices Manoj Kumar and Vicky, during a scuffle, were thrown by him down the cliff, at an unknown place, which only he could get identified and get the same recovered. Now significantly, in this statement, he does not even record involvement of co-accused Sanjeev Kumar. We have already held Divesh Sharma not to be a witness worthy of credence. Also, there is contradiction with regard to the place from where Dandas came to be recovered. According to Divesh Sharma, they were recovered from the bushes, but according to the Investigating Officer, as is also recorded in memo (Ex.PW-3/C), recovery came to be effected from a place known as Shallang. But what is important is that despite admission made by the Investigating Officer, that Dandas were blood stained, police never sent them for analysis to the expert. Why so? remains unexplained. After all, either blood of the injured or the deceased or finger prints of the juvenile and the co-accused could have been found thereupon. 37. But what is important is that despite admission made by the Investigating Officer, that Dandas were blood stained, police never sent them for analysis to the expert. Why so? remains unexplained. After all, either blood of the injured or the deceased or finger prints of the juvenile and the co-accused could have been found thereupon. 37. In any event, version of the prosecution of having lifted blood stained grit from the spot on 29.10.2007 stands belied by Lal Chand, according to whom they were lifted on 31.10.2007. 38. There is yet another issue, which remains unexplained by the prosecution. Divesh Sharma admits that he was not aware of particulars of any one of the co-accused persons. If that were so, then how is it that police reached to the juvenile and co-accused. The Investigating Officer is conspicuously silent with regard to any test identification parade carried out by the police, but perhaps truth stands revealed by Divesh Sharma, who does state that for identifying the juvenile and co-accused, police got conducted the identification parade. In fact, he goes on to disclose that at that time, he was not even aware of name of Lal Chand. All this has further rendered the genesis of the prosecution story to be doubtful. In fact, in response to a Court question, Divesh Sharma categorically states that identity of the juvenile and the co-accused came to be disclosed to them by the police. 39. Also, Lal Chand, in his cross-examination, uncontrovertedly, categorically admits of not having seen anyone of the co-accused or the juvenile, assault the deceased or the witnesses. 40. From the material placed on record, prosecution has failed to establish that Juvenile Vikrant is guilty of having committed the offence, he has been charged with. The circumstances cannot be said to have been proved by unbroken chain of unimpeachable testimony of the prosecution witnesses. The guilt of the juvenile does not stand proved beyond reasonable doubt to the hilt. 41. Hence, it cannot be said that prosecution has been able to prove its case, by leading clear, cogent, convincing and reliable piece of evidence so as to prove that Juvenile Vikrant along with co-accused Manoj Kumar, Gauri Shankar and Sanjeev Kumar, in furtherance of their common intention, committed murder of Varun Mahajan. 42. For all the aforesaid reasons, we find no reason to interfere with the judgment passed by the trial Court. 42. For all the aforesaid reasons, we find no reason to interfere with the judgment passed by the trial Court. The Court has fully appreciated the evidence so placed on record by the parties. 43. The juvenile has had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down by the Apex Court in Prandas (supra), it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the juvenile has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the juvenile are discharged. Appeal stands disposed of, so also pending applications, if any.