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2018 DIGILAW 1372 (HP)

Sukha @ Sawrup Chand v. State of H. P.

2018-07-24

DHARAM CHAND CHAUDHARY, VIVEK SINGH THAKUR

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JUDGMENT : Dharam Chand Chaudhary, J. One of convicts, Sukha @ Sawrup Chand has preferred the present appeal against his conviction along-with his co-convicts Jeevan Kumar, Lekh Raj, Shaitan Singh @ Ravinder Singh and Puran Chand for the commission of offence punishable under Sections 147, 149, 452 and 302 IPC. He along-with his co-convicts was consequently sentenced to undergo life imprisonment for the offence punishable under Section 302 IPC and to pay fine of Rs.25,000/- each. They all were sentenced to undergo simple imprisonment for one year for the offence punishable under Section 147 and rigorous imprisonment for five years for the offence punishable under Section 452 IPC and to pay fine of Rs.5,000/-. 2. His co-convicts had preferred different appeals against this very judgment, which is under challenge in the present appeal. Puran Chand and Shaitan Singh @ Ravinder Singh had filed Criminal Appeal No. 561 of 2004, whereas Lekh Raj Criminal Appeal No. 16 of 2005 and Jeevan Kumar Criminal Appeal No. 17 of 2005. All the three appeals were heard and decided by a common judgment, passed in Criminal Appeal No. 561 of 2004, dated 20.3.2008 by a Co-ordinate Bench of this Court on re-appraisal of the given facts and circumstances and also the evidence available on record. All the three appeals were allowed and the above-said convicts acquitted of the charges framed against each of them. Even the appeals preferred by the State of Himachal Pradesh in the Apex Court, registered as Criminal Appeals No. 1368-1370/2009 also stand dismissed vide judgment dated 27.04.2015. Meaning thereby that the co-convicts of the appellant-convict herein, have been acquitted of the charge and set free. 3. In the present appeal preferred by convict Sukha @ Sawrup Chand (hereinafter to as ‘accused No.1’) through jail, he has sought the findings of conviction and sentence recorded against him by learned trial Court on the grounds inter-alia that the evidence has been misread and mis-construed. The incriminating circumstances relied upon were never put to him in his statement recorded under Section 313 of the Code of Criminal Procedure. The confessional statement allegedly managed by the investigating agency during the course of investigation by inducement, threat and promise has erroneously been relied upon while recording findings of conviction by learned trial Court. 4. The incriminating circumstances relied upon were never put to him in his statement recorded under Section 313 of the Code of Criminal Procedure. The confessional statement allegedly managed by the investigating agency during the course of investigation by inducement, threat and promise has erroneously been relied upon while recording findings of conviction by learned trial Court. 4. The facts, in a nut shell, are that during the night intervening 9-10th April, 2003 around 12.00’ O’clock accused No. 1 accompanied by his co-accused Jeevan Kumar, Lekh Raj Shaitan Singh @ Ravinder Singh and Puran Chand have allegedly assaulted deceased Balbir Chand in his house situated in village Halehar with dandas, who succumbed to the injuries dealt with dandas by the accused persons and died. PW-1 Vijay Kumar watching programme on television came outside for urination and on attracted to an alarm ‘Bachao-Bachao’ being raised from the side of the house of deceased Balibir Chand rushed there. He noticed that the deceased was caught hold by accused No.1 being beaten up by his co-accused with dandas. PW-3 Ravi Dutt son of deceased Balbir Chand was crying “Dady ko Maar Diya, Maar Diya”. On hearing cries of PW-3, accused persons threw Balbir Chand in the courtyard and ran away. In the meanwhile, Jyoti Prakash (PW-5) and his wife Swarna Kumari, Sanjay (PW-2) and Madhu also arrived at the place of occurrence. On noticing blood oozing out of the injuries sustained by deceased Balbir Chand, they lifted him from the courtyard and made him to lay inside the room on floor. He was dead by that time. Vijay Kumar (PW-1) informed Gurdial Singh (PW-6), Ward Member and Raghubir Singh (PW-8), Pradhan of local Gram Panchayat, Amroh. The Pradhan visited the spot and thereafter returned to his house in village Amroh and informed the police of Police Chowki, Terrace. The Police arrived at the spot around 8.00 a.m. and recorded statement Ext. PW-1/A of Vijay Kumar (PW-1) under Section 154 of the Code of Criminal Procedure at 11.45 a.m. on 10.04.2003. On the basis of statement Ext. PW-1/A, FIR Ext. PW-10/A was registered. The inquest papers were prepared and the dead body was sent for autopsy. The photographs Ext. PW-18/A-1 to Ext. PW-18/A-10 were also taken. The recovery of two sticks Ext. P-1 and Ext. P-2 also effected from the spot and the site plan Ext. PW-6/C prepared. 5. PW-4 Dr. On the basis of statement Ext. PW-1/A, FIR Ext. PW-10/A was registered. The inquest papers were prepared and the dead body was sent for autopsy. The photographs Ext. PW-18/A-1 to Ext. PW-18/A-10 were also taken. The recovery of two sticks Ext. P-1 and Ext. P-2 also effected from the spot and the site plan Ext. PW-6/C prepared. 5. PW-4 Dr. Jatinder Saxena on conducting autopsy of the dead body has found the cause of death ‘shock suffered due to the injuries on skull’ of the deceased. The post-mortem report Ext. PW-4/A was also collected. On the basis of disclosure statement Ext. PW-7/C allegedly made by accused Lekh Raj, sticks were recovered from nearby bushes and taken into possession vide recovery memo Ext. PW-7/A. Another accused Puran Chand had also made disclosure statement Ext. PW-7/B and got recovered another danda, which was taken into possession vide recovery memo Ext. PW-7/E. The blood stained earth was also taken from the spot vide memo Ext. PW-5/A. A pair of shoes having label of “Gray Mark Wood-land” allegedly of accused No. 1 was also taken into possession vide recovery memo Ext. PW-16/E. The motive to kill the deceased was old enmity on account of accused persons having administered beatings to Ravi Dutt (PW-3) about two months back and in retaliation thereto, deceased Balbir Chand had administered beatings to accused No. 1 and his co-accused Shaitan Singh. 6. The Police on completion of the investigation has filed the challan. The charges against at all the accused persons were framed under Sections 147, 149, 452 and 302 IPC. The material prosecution witnesses are the complainant Vijay Kumar (PW-1), Sanjay Kumar (PW-2), Ravi Dutt (PW-3) and Jyoti Prakash (PW-5), the so called eye witnesses. The remaining prosecution witnesses are formal as PW-4 Dr. Jatinder Saxena has conducted autopsy and issued post-mortem report Ext. PW-4/B. He has proved the inquest papers Ext. PW-4/A. PW-6 Gurdial Singh is the Ward Member, whereas PW-8 Raghubir Singh, the then Pradhan of Gram Panchayat, Amroh. They arrived at the scene of occurrence after the incident. PW-7 Julfi Ram is the witness to the disclosure statement qua the recovery of sticks allegedly made by the accused Lekh Raj and Shaitan Singh and Sticks Ext. P-4 to Ext. P-6 were taken into possession vide recovery memo Ext. PW-7/A. PW-9 Arvind Nath was working as Surveyor in H.P.P.W.D, Dadasiba at the relevant time. PW-7 Julfi Ram is the witness to the disclosure statement qua the recovery of sticks allegedly made by the accused Lekh Raj and Shaitan Singh and Sticks Ext. P-4 to Ext. P-6 were taken into possession vide recovery memo Ext. PW-7/A. PW-9 Arvind Nath was working as Surveyor in H.P.P.W.D, Dadasiba at the relevant time. He had prepared the site plan Ext. PW-9/A of the place of occurrence. PW-10 Hem Raj on receipt of statement Ext. PW-1/A of PW-1 Vijay Kumar has registered the FIR Ext. PW-10/A in Police Station. Dehra. PW-11. The then SHO, Police Station, Dehra had prepared the charge sheet and filed the same in the Court. PW-12 Head Constable Dharam Paul of Police Post, Terrace has partly investigated the case, whereas PW-13 Head Constable Onkar Chand had proved the rapats daily diary Ext. PW-13/A and Ext. PW-13/B. PW-14 HHC Tarloki Prakash had taken the case property to Forensic Science Laboratory, Bharari vide RC No. 42/21 and deposited there, PW-15. Bir Singh has proved the disclosure statement Ext. PW-7/B and recovery of sticks thereby vide memo Ext. PW- 7/D. PW-16 ASI Hoshiar Singh has partly investigated the case. Similarly, PW-17 ASI Karam Chand has also investigated the case partly. PW-18 Satish Kumar is the photographer who has proved the photographs Ext. PW-18/1 to Ext. PW-18/10 and the negatives thereof Ext. PW-18/11 to Ext. PW-18/19. 7. On the other hand, the accused persons in their statements recorded under Section 313 of the Code of Criminal Procedure have denied the prosecution case either being wrong or for want of knowledge. According to them, they were implicated in this case falsely due to enmity. Accused No. 1 Sukha @ Sawrup Chand, appellant in the present appeal, while answering question No. 29 has admitted that the statement Ext. P-Z was made by him and recorded by learned Chief Judicial Magistrate, Kangra at Dharamshala. In reply to question No. 33, It is submitted that he had quarreled earlier with deceased twice and even on that day also he had sic.. made by mistake and he was killed. 8. Learned trial Judge relying upon the statements of above-said eye witnesses and also the so called confessional statement Ext. In reply to question No. 33, It is submitted that he had quarreled earlier with deceased twice and even on that day also he had sic.. made by mistake and he was killed. 8. Learned trial Judge relying upon the statements of above-said eye witnesses and also the so called confessional statement Ext. P-Z made by accused No. 1 allegedly before learned Chief Judicial Magistrate, Kangra at Dharamshala and also the link evidence having come on record by way of testimony of official witnesses including remaining witnesses formal in nature, has convicted and sentenced all the accused persons, in the manner, as already pointed out, at the very out set. 9. Mr. Vinay Thakur and Ms. Rubeena Bhatt, learned defence counsel while inviting our attention to the common judgment of this Court reported in Latest HLJ 2008(HP) 791, passed in three different appeals filed by the co-convicts of accused convicts Sukha and also that of the Hon’ble Apex Court in Criminal Appeal(s) No. 1368-1370/2009, whereby the appeals preferred against the judgment supra stand dismissed and they all have been acquitted of the charges has strenuously contended that the appellant-convict Sukha, convicted with the help of same evidence is also entitled to be acquitted of the charges framed against him. In order to substantiate his claim reliance has also been placed on the judgment of the Apex Court in Md. Sajjad @ Raju @ Salim Vs. State of West Bengal, Criminal Appeal No. 1953 of 2010, decided on 06.01.2017, in which it has been held that the non-appealing accused-convict is also entitled to the benefit of doubt granted to similarly situated co-convicts. Nothing to the contrary was brought to our notice to controvert the arguments so addressed and the case law cited on behalf of the accused No.1 Sukha, appellant herein. 10. As noticed supra, a Co- ordinate Bench of this Court in Puran Chand’s case cited supra has discussed the evidence having come on record by way of testimonies of so called eye witnesses and has held that the same is not cogent and reliable and sufficient to prove the prosecution case beyond all reasonable doubt. Vijay Kumar (PW-1) was not on the spot at the time when the accused allegedly started beating the deceased with dandas because he came there on hearing the alarm ‘Bachao Bachao’. Vijay Kumar (PW-1) was not on the spot at the time when the accused allegedly started beating the deceased with dandas because he came there on hearing the alarm ‘Bachao Bachao’. Being dead hours of night, how he could have stated with all exactness that it is the accused alone who were the assailants and had assaulted the deceased with dandas. Raghubir Singh (PW-8), the Pradhan on being informed by PW-1 and Gurdial Singh (PW-6) did not rush to the spot at once and rather told them, that being night hours, he could reach on the spot only in the morning. He therefore, visited the sport at 6.30 a.m. As per evidence having come on record, he went to his native place at Village Amroh and called the police of Police Post, Terrance therefrom. As is apparent from daily diary Ext. PW- 13/A recorded by PW-13 Dharam Pal at the instance of PW-8, the Pradhan Gram Panchayat, assailants belonging to village Kraint came to village Amroh around 12.00 mid night and murdered deceased Balbir Chand there. Since as per version of PW-1 Vijay Kumar, the assailants were the accused persons and as it is he accompanied by the Ward Member give information qua the incident to PW-8, the Pradhan, therefore, it can reasonably be believed that he may have disclosed the names of assailants also to the latter. Raghubir Singh (PW-8) the Pradhan as such, should have disclosed the names of the assailants to the police while reporting the matter over telephone. 11. There is another glaring discrepancy in the prosecution story i.e. the place of occurrence, which as per prosecution case is Padar-Pragpur, however, in Ext. PW-13/A, the name of place of occurrence finds mentioned as village Amroh. In the site plan prepared by the investigating Officer also, the place of alleged occurrence does not find mentioned. Interestingly enough, all the accused persons are resident of Village Halehar, whereas, as per Ext. PW-13/A, the unknown assailants were of village Kraint. The recording of statement Ext. PW-1/A of PW-1 Vijay Kumar has also been delayed because the same was recorded at 11.40 a.m. whereas the police had arrived on the spot at 7.40 a.m. No plausible explanation is forthcoming to this aspect of the matter also. PW-13/A, the unknown assailants were of village Kraint. The recording of statement Ext. PW-1/A of PW-1 Vijay Kumar has also been delayed because the same was recorded at 11.40 a.m. whereas the police had arrived on the spot at 7.40 a.m. No plausible explanation is forthcoming to this aspect of the matter also. In this view of the matter there being no hand of accused Sukha in the murder of deceased, he deserves to be acquitted of the charge. 12. Now if coming to the testimony of Ravi Dutt (PW-3), the minor son of deceased Balbir Chand, he was sleeping with his father in the same room. The door was locked. During the mid night at 12 ‘O’ Clock, his father woke-up and switched on the light of the room and also that the courtyard. On opening the door, he saw the accused persons there with lathis in their hands. They attacked the deceased and he was taken outside the room to the courtyard. The deceased shouted ‘Bachao Bachao’ and he apprehended danger to his life did not went out and rather kept on staying at the door as well as cried for help ‘Bachao Mere Dady Ko Maar Diya’. It is on hearing the alarm he raised, Vijay Kumar (PW-1), Swarna, Jyoti (PW-5), Madhubala and Sanjay (PW- 2) came there. On seeing them, the accused persons fled away. The witnesses arrived there lifted his father from the courtyard and kept him inside the room. However, as per version of PW-1 on hearing alarm ‘Bachao Bachao’ he cried for help and on hearing him Jyoti Prakash (PW-5), Sawarna Devi, Sanjay (PW-2) and Madhu came there. Therefore, these four persons came after PW-1 reached on the spot. How PW-2 Sanjay could have come simultaneously with Jyoti Prakash (PW-5) and Madhu on hearing the noise ‘Maro Maro’ because his house was situated at a distance of 600 meters from the house of the deceased. It may have taken 5-10 minutes to reach on the spot. Above all, it is not the prosecution case that the ‘Lalkara’ ‘Maro Maro’ was given by the accused or anyone else. Otherwise also, as per his version when he reached on the spot, he noticed the assailants fleeing away from that place. Jyoti Prakash (PW-5) woke-up on hearing the noise of sticks during the mid night. Above all, it is not the prosecution case that the ‘Lalkara’ ‘Maro Maro’ was given by the accused or anyone else. Otherwise also, as per his version when he reached on the spot, he noticed the assailants fleeing away from that place. Jyoti Prakash (PW-5) woke-up on hearing the noise of sticks during the mid night. He noticed few persons were beating the deceased with sticks and when he arrived there along with Swarana, Madhu, Vijay Kumar (PW-1) and Sanjay (PW-2), the said persons fled away from the spot. He woke-up on hearing the noise of sticks. Nothing of the sort has come in his statement recorded under Section 161 of the Code of Criminal Procedure. The dead body of Balbir Chand was lying in a pool of blood inside the room. In case it was lifted by the above said witnesses from the courtyard, it is not known as to why their clothes not stained with blood. Therefore, on this score, also, the prosecution story is palpably false. 13. There is no plausible and dependable evidence to show as to when deceased breathed his last. As per medical evidence having come on record by way of testimony of PW-4 Dr. Jitender Saxena, probable time between injury and death was 1 to 3 hours, whereas time between death and post-mortem 12 to 24 hours. Irrespective of it, about the exact time of death, an opinion could have been formed as to when deceased, had taken last meal. The entries against column Nos. 4, 5 and 6 of postmortem report record the remarks ‘normal’. Therefore, there is not mention in the post-mortem report qua the digestive and non-digestive contents in the small or big intestines. On the other hand, as per version of PW-3 when his father was brought inside during the night, he was breathing. This witness came to know about his death only in the morning at 7.30 a.m., when he woke-up from sleep. Therefore, link evidence of also not suggestive of that deceased Balbir Chand was murdered in the manner as claimed by the prosecution. Interestingly enough, had the deceased been beaten-up in the presence of PW-3 Ravi Dutt and brought almost dead to the room, how the said witness could have uninterruptedly slept during that night. However, as per his version after the alleged incident he went to his bed and enjoyed sound sleep. Interestingly enough, had the deceased been beaten-up in the presence of PW-3 Ravi Dutt and brought almost dead to the room, how the said witness could have uninterruptedly slept during that night. However, as per his version after the alleged incident he went to his bed and enjoyed sound sleep. He woke-up in the morning on his usual time. Therefore, the so called eye witness count having come on record is not suggestive of that there is hand of accused Sukha in the murder of deceased Balbir Chand. 14. Learned trial Judge has relied upon the so called confessional statement Ext. P-Z. Firstly, there is no such exhibited document in the document part of the trial Court record. We could lay our hand on a statement in challan part, recorded by learned Chief Judicial Magistrate, Kangra at Dharmashala on 02.09.2003. The same, however, does not bear P-Z as exhibit mark thereon. It has come in this document that accused Sukha quarreled with deceased Balbir Chand and his brothers Kishori, Sanjay and Vijay on 09.04.2003 at Piplu. The time was 7.00 -8.00 and they all were lashed with sticks. During quarrel, it could not be ascertained as to who administered beatings to whom. The lathi of Shahtoot tree in the hand of deceased Balbir Chand though was snatched by him, however, he could not hold the same in his hand. He had given punch blow to deceased Balbir Chand and left for his house. He came to on the following morning that Balbir Chand had died. The Chief Judicial Magistrate, who has recorded this statement has not been examined nor cited as witness. Nothing is there in the prosecution evidence including the statement of Investigation Officer(s) examined by the prosecution that confession was made by accused Sukha and recorded by learned Chief Judicial Magistrate. Therefore, the present in a case where no such incriminating circumstance has appeared in the prosecution evidence. In the statement recorded under Section 313 of the Code of Criminal Procedure, the only incriminating circumstances appeared in the prosecution evidence are required to be put to an accused. In that case in hand, irrespective of there being no such incriminating circumstances appeared in the prosecution evidence, question Nos. In the statement recorded under Section 313 of the Code of Criminal Procedure, the only incriminating circumstances appeared in the prosecution evidence are required to be put to an accused. In that case in hand, irrespective of there being no such incriminating circumstances appeared in the prosecution evidence, question Nos. 27, 28 and 29 that accused Sukha had written a letter to the Court from judicial lock-up on 08.08.2003, whereby expressed his desire to confess his guilt, on 01.09.2003, when brought to the Court at Dharamshala, he made the statement before Chief Judicial Magistrate, Kangra at Dharamshala despite warning that any such statement can be used against him and that subsequently learned Chief Judicial Magistrate had recorded his confessional statement Ext. P-Z were put to him. True it is that the questions so put him have been admitted as correct, however, the facts remain that when no such incriminating circumstances appeared in the prosecution evidence, no such questions could have been put to accused Sukha nor answers he had given thereto while recording his statement under Section 313 of the Code of Criminal Procedure can be used against him. Therefore, the findings to the contrary recorded by learned trial Court being illegal does not stand to the test of legal scrutiny. 15. In view of the what has been said hereinabove, coupled with the factum of the co-accused-convicts 4 in Nos., were acquitted by this Court vide common judgment passed in Puran Chand case cited supra which even has been affirmed by the Hon’ble Apex Court also vide order dated 27.4.2015 passed by Criminal Appeals Nos. 1368-1370/2009, accused convict Sukha @ Sawrup Chand is also entitled to the benefit of doubt and consequently acquittal. The impugned judgment and order qua him, is therefore, quashed and set aside and he is also acquitted of the charge framed against him under Section 147, 149, 302 and 452 IPC he had set free forthwith if not required in any other case.