Harjinder Singh Alias Nikka Vs State of Hp

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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

	Cr. Appeal No	.322 of 2018 a/w
	Cr. Appeals No.3	06,343 & 402/2018
	Reserved on: Decided on:	01.07.2024 16.07.2024
________________________ 1.Cr. Appeal No. 322 of 2018	_________________	_____________
Satnam Singh	Versus	…..Appellant
State of Himachal Pradesh		……Respondent
__________________________ 2.Cr. Appeal No. 306 of 2018	_________________	______________
Baljinder Singh @ Bindu	Versus	…..Appellant
State of Himachal Pradesh		……Respondent
__________________________ 3.Cr. Appeal No. 343 of 2018	_________________	______________
Kamal Jeet Singh & others	Versus	…..Appellants
State of Himachal Pradesh		……Respondent
__________________________ 4.Cr. Appeal No. 402 of 2018	_________________	______________
Harjinder Singh @ Nikka	Versus	…..Appellant
State of Himachal Pradesh __________________________	_________________	……Respondent ______________

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Coram

Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge Hon'ble Mr. Justice Sushil Kukreja, Judge

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1 Whether approved for reporting? Yes.

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_____________________ For the appellant(s):	________________________________ Mr. Ramesh Chand Sharma, Advocate, Legal Aid Counsel, for the appellant, in Cr. Appeal No. 322 of 2018. Mr. Vijay Bir Singh, Advocate, for the appellant, in Cr. Appeal No. 306 of 2018. Mr. N.S. Chandel, Senior Advocate, with Mr. Kshitij Thakur, Advocate, for the appellants, in Cr. Appeal No. 343 of 2018.
	Ms. Kanta Thakur, Advocate, for the appellant, in Cr. Appeal No. 402 of 2018.
For the respondent/State:	Mr. I.N. Mehta, Senior Additional Advocate General, with Mr. Navlesh Verma, Additional Advocate General.

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Sushil Kukreja, Judge

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Since all these appeals are the offshoots of the impugned judgment rendered by the learned trial Court, which has been challenged by way of the instant appeals, the same are being taken up together for disposal.

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The instant appeals have been maintained by appellants/ accused/convicts (hereinafter referred to as the accused persons) against judgment of conviction and order of sentence dated 04.07.2018, passed by learned Additional Sessions Judge-I, Kangra at Dharamshala, District Kangra, H.P., in Sessions Case No.13-I/VII/2015,

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whereby the appellants-accused persons, namely Harjinder Singh,

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1 Whether reporters of Local Papers may be allowed to see the judgment?

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Gurdeep Singh, Yashpal, Kamal Jeet Singh and Satnam Singh were convicted and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.10,000/- each for the commission of offence punishable under Sections 120-B & 302 read with Section 34 of the Indian Penal Code (for short ‘IPC’) and in default of payment of fine, they were further ordered to undergo simple imprisonment for a period of one year. Appellants/accused persons Baljinder Singh, Harjinder Singh, Gurdeep Singh, Yashpal, Kamal Jeet Singh and Satnam Singh were also sentenced to undergo simple imprisonment for a period of three years and to pay a fine of Rs.5000/- each for commission of the offence punishable under Section 201 read with Section 34 of IPC and in default of payment of fine, they were ordered to further undergo simple imprisonment for a period of six months.

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The facts giving rise to the present appeal, as per the prosecution story, can be summarized as under: 3(a). As per story of the prosecution, the allegations against accused persons Kamal Jeet Singh, Yashpal @ Mintu, Lovedeep @ Raju, Satnam Singh, Gurdeep Singh @ Gaggi, Harjinder Singh @ Nikka and Hanni are that on 11.11.2014, around 01:30 a.m., they gave beatings to Rajinder Singh @ Bhura who was admitted in Drug deaddiction Centre at Raja Khassa (hereinafter referred to as the ‘centre’) with danda and fan-belt and such beatings continued till 05:00 a.m. Complainant Sukhwinder Singh, one of the inmates of the centre,

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witnessed the incident and when he woke up at about 07:00 a.m., he saw the corpse of Rajinder Singh in a room and the head of the corpse was smeared with blood. The accused persons shifted the corpse of the deceased from the ground floor to the first floor and on being inquired by the complainant, accused Lovedeep disclosed that the deceased was admitted in the hospital and after three days of the incident, on being again inquired by the complainant, accused Satnam Singh disclosed that the deceased was sent to his house and thereafter on 16.11.2014, accused Honey told the complainant that the deceased had died. The accused persons had murdered Rajinder Singh and disposed of his dead body. The complainant further stated before the police that on 16.11.2014, at around 03:00 p.m., Jora Singh, Sarpanch, came to the centre alongwith 7-8 persons and they opened the lock of the centre and thereafter the inmates of the centre, including the complainant, fled away to their respective houses. The complainant disclosed about the incident of 11.11.2014 to said Jora Singh. Some unknown person informed the police.On 17.11.2014 that Rajinder Singh had disappeared from the centre and in sequel thereto, ASI Rajinder Kumar visited the centre and recorded the statement of the complainant under Section 154 Cr.P.C., on the basis of which, a formal FIR was registered. 3(b). During the course of investigation, statements of the inmates of the centre were recorded. It was unearthed that some of the inmates of the centre complained to accused Kamal Jeet Singh that the

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deceased had assaulted them. The deceased was called on the first floor and the accused persons had thrashed him with danda and fanbelt till 05:00 a.m. During investigation, it also transpired that blood was oozing from the head of the deceased and the accused persons washed the blood stains present on the spot and the corpse of the deceased was shifted to the first floor. The dead body of the deceased was found at Ghatnalu nullah and postmortem was conducted at Zonal Hospital, Dharamshala and thereafter the same was handed over to his family members.

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3(c). Accused Yashpal made a disclosure statement under Section 27 of the Indian Evidence Act and got recovered a danda and fan-belt from the centre, which were taken into possession by the police. He also disclosed that he had disposed of the dead body of the deceased with the help of accused Baljinder Singh in the Indica car near Shahpur during the night hours. The police prepared the spot map, clicked photographs, recorded statements of the witnesses and procured the reports of postmortem as well as RFSL. After completion of the investigation, police prepared the charge-sheet and presented the same before the learned trial Court.

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The prosecution, in order to prove its case, examined as many as twenty-three witnesses and thereafter statements of the accused persons were recorded under Section 313 Cr.P.C., wherein they pleaded not guilty and claimed trial. The accused persons

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examined one witness in their defence.

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On the basis of evidence led on record by the prosecution, the learned trial Court convicted the accused persons, vide impugned judgment and sentenced them as per the description given hereinabove.

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Learned Senior Counsel/Counsel for the respective appellants contended that there is no direct evidence which proves the involvement of the appellants. They further contended that the chain of circumstances is not complete and the prosecution has failed to prove its case beyond all reasonable doubts, therefore, the benefit of the same must go to the appellants. It is also contended that the trial Court ignored the major contradictions in the statements of prosecution witnesses, which shatter the credibility of the prosecution story. Lastly, it is prayed that the impugned judgment of conviction and order of sentence may be set-aside and the appellants be acquitted.

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Conversely, the learned Senior Additional Advocate General contended that the impugned judgment of conviction and order of sentence passed by the learned trial Court are the result of proper appreciation of both facts and law. The learned trial Court appreciated the evidence to its true and right perspective as there was ample material against the appellants, which ultimately resulted in their conviction. He further contended that the case of the prosecution has been proved beyond all reasonable doubt and that there is enough

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evidence on the record to inculpate all the accused/appellants, as has been rightly concluded by the trial Court. He further submitted that the judgment of the trial Court being well reasoned, does not call for any interference and the instant appeals, which lack merits, be dismissed

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We have heard the learned Senior Counsel/Counsel for the respective appellants as well as the learned Senior Additional Advocate General for the respondent-State and have also carefully examined the entire records.

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The burden of proof in a criminal trial never shifts and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence. In fact, it is a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof required, since a higher degree of assurance is required to convict the accused.

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In the instant case, the appellants/accused persons, namely, Kamal Jeet Singh, Harjinder Singh @ Nikka, Gurdeep Singh, Satnam Singh, Yashpal Singh @ Jaspal stood charged for commission of the offences under Sections 120-B, 302 & 201 of IPC read with Section 34 of IPC, whereas appellant/accused Baljinder Singh @ Bindu was charged for commission of the offence under Sections 201 read with Section 34 of IPC. To substantiate the said charges and to bring home the guilt of the accused persons, the prosecution examined as many as 23 witnesses. However, the case of the prosecution mainly

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rests upon the statements of PW-1 Sukhvinder Singh (complainant), PW-2 Gurpeet Singh, PW-3 Jora Singh, PW-4 Jeet Singh (father of the deceased), PW-5 Sukhchain Singh, PW-10 Dr. Keshav and PW-11 ASI Ajeet Singh (Investigating Officer).

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PW-1 Sukhvinder Singh, who is the complainant, deposed that he was a drug addict, as such, his parents sent him to de-addiction centre Raja-Khasa on 30.10.2014 and he remained there upto 16.11.2014. On 16.11.2014 Sarpanch Jora Singh and 7-8 persons came to the centre and opened the lock of the centre and all the inmates 25 to 30 in number ran away from the centre to their respective houses. Earlier on 11.11.2014 at about 1.30 a.m., Satnam, Kamal, Mintu and Gaggi came in the centre from outside and some of his inmates complained to them that Rajinder @ Bhura had fight with them. At that time Rajinder @ Bhura was on first floor and on this, Kamal said to call Rajinder from the first floor and when Rajinder came down, all the above four persons made him lie down on the floor and started beating him. Mintu was carrying faran-belt (fan-belt) and Gaggi was carrying a Danda. They all gave beatings to Rajinder and after some time, Kamal took a d anda from Gaggi and Nikka took fan-belt and started beating Rajinder. They continuously gave beatings to Rajinder @ Bhura upto 5 am and blood started oozing from his head and thereafter Rajinder was taken to first floor and the blood which was lying on the spot was got washed by accused Kamal from a boy with the help of water. Thereafter

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he went to sleep and on the next day, they asked from Lovedeep about Rajinder @ Bhura, who disclosed that Rajinder @ Bhura was admitted in the hospital and after two days, they again asked from Lovedeep about Bhura and he told that Rajinder was sent to his house. Thereafter when on 16.11.2014 Panchayat came and they unlocked the centre, they ran to their respective houses and then they disclosed the incident to Sarpanch Jora Singh and on 17.11.2014 they came to RajaKhasa and police was also intimated. They could not inform the police after 11.11.2014 to 17.11.2014 because they were locked in the centre and were not allowed to talk to anybody. On 17.11.2014 they took Bindoo and Yashpal and handed over both these accused persons to the police. They handed over Bindoo to the police as they came to know that in his car, remaining five accused persons disposed off the dead body of Rajinder @ Bhura. Lovedeep was not present at the spot on the day of incident.

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PW-2 Gurpreet Singh deposed that on 04.11.2014, his father sent him to drug de-addiction centre Raja-Khasa and from 4.11.2014 to 16.11.2014 he remained there. On 16.11.2014, the panchayat of their village headed by Sarpanch Jora Singh came to the centre and made them run away after breaking the lock of the gate of the centre and at that time, there were 35-40 boys in the centre. On 11.11.2014 at about 1.30 a.m., Kamal, Gaggi, Mintu and Satnam came from outside and the inmates complained to them that Rajinder had

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given beatings to them, who at that time was on the first floor, was called by Kamal and after that when Rajinder came down, all above four accused persons started beating him. Mintu was carrying a belt and Gaggi was carrying a d anda and thereafter Nikka took the belt and Kamal took the d anda and all five started giving beatings to Rajinder @ Bhura upto 5 am. The blood was oozing from his head and then he was taken to first floor by the accused persons and the blood on the floor was washed by them. After 2-3 days, Lovedeep came and when they inquired about Rajinder, he disclosed that Rajinder was admitted in the hospital. And 2-3 days thereafter, they again inquired about Rajinder from Lovedeep, who disclosed that Rajinder was sent to his house. On 17.11.2014 he alongwith other inmates and inhabitants of the village came to the centre and Bindoo and Mintoo also accompanied them as accused persons disposed of the dead body of Rajinder in the vehicle driven by Bindoo. At the time of incident, Lovedeep was not present in the centre.

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PW-3 Jora Singh, deposed that his wife was Sarpanch of village Rauli and on 16.11.2014, he came to know that Rajinder Singh @ Bhura was murdered in de-addiction centre, Raja Khasa. Ajeet Singh came to his house and he alongwith Jeet Singh and other persons went to Raja-Khasa and they asked from the employees of the centre, who told that Rajinder Singh had run away from the centre on 11.11.2014 and then they entered the de-addiction centre, where one boy

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Sukhwinder Singh met them, who told that on 11.11.2014 at about 1.30 am, Kamal, Mintu, Satnam, Gaggi, Honey and Nikka gave beatings to Bhura with the help of belt and Danda and killed him. Thereafter, all the boys present in the centre ran from there to their respective houses. On the next day, he alongwith Jeet Singh and boys of the centre as well as other persons came to Raja-Khasa and they brought Baljinder @ Bindoo and Mintu with them and handed over both these persons to the police. Bindoo told him that he took Indica car of Kamal and disposed of the dead body of Bhura.

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PW-4 Jeet Singh, deposed that the name of his younger son was Rajinder @ Bhura, who was drug addict and one Raju of their village advised to admit him in drug de-addiction centre at Jallandhar and he sent his son there, who returned after one month and stayed in the house for four days and during this period, he was alright. Thereafter Raju again came to me and advised to get Rajinder admitted in the centre at Raja Khasa and for this, he paid him Rs. 10,000/- and sent his son Rajinder to the centre Raja-Khasa. On 16.11.2014, his grandson received phone of Rampa, but could not talk due to some technical defect. On coming to know about the murder of his son, he went to Jora Singh of his village and thereafter they proceeded to the centre alongwith Mohinder, Darshan etc. They reached de-addiction centre and inquired about Rajinder from the staff, who disclosed that Rajnder had left on 11.11.2014. Raju was not there at that time. They

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asked the staff to open the gate of the centre and on inquiry, he was disclosed by Sukhwinder that Rajinder was murdered by Mintoo, Gaggi, Satnam, Kamal, Honey and Nikka by belt and Danda on 11.11.2014 and disposed of his dead body. He brought Bindoo and Mintu and handed over to police and they brought Bindoo with them because he disclosed to their villagers that he took car of Kamal to disposed of the body of Rajinder @ Bhura.

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PW-5 Sukhchain Singh deposed that on 20.10.2014, he was admitted in de-addiction centre at Raja Khasa and remained there till 16.11.2014. On 16.11.2014 Sarpanch of their village alongwith 13-14 other persons came to drug de-addiction centre, opened the gate of the centre, then they all inmates of the centre ran away. Prior to this, on 11.11.2014 at about 1.30 am in the midnight Kamal, Satnam, Mintu and Gaggi came from outside and the inmates of the centre complained to them that Rajinder @ Bhura fought with them. At that time, Rajinder was on the first floor and thereafter Kamal called Rajinder down stairs and four of them assaulted him. Mintoo was armed with belt and Gaggi was armed with Danda, with which, they assaulted Rajinder Singh. After some time, Kamal took Danda, Nikka took belt and one Honey caught hold of Rajinder and all of them assaulted him till 5 am. Rajinder sustained injuries on his body and blood was oozing and at 5 am Rajinder was taken up-stairs to the first floor. The blood that was lying on the floor was got washed by Kamal from one of the boys with the

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help of bucket. Thereafter, they slept and did not know what happened. Lovedeep was not present at that time in the centre and he came two days after the incident. They inquired about Rajinder from Lovedeep, who disclosed that Rajidner had been shifted to the hospital and two days thereafter, they again inquired about Rajinder from Lovedeep and he disclosed that he had been sent to his house after discharge from the hospital. On 17.11.2014, they alongwith panchayat came to Raja Khasa and handed over Baljinder @ Bindoo and Mintoo to the police as Baljinder disposed off the dead body of Rajinder with Kamal in the car of Kamal.

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PW-10 Dr. Keshav, conducted the postmortem on the dead body of the deceased and gave his opinion, which reads as under:-

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“ After going through the postmortem examination of the body, I am of the opinion that the cause of death is antemortem multiple bony and internal and vital organ injuries leading to internal bleed hemorrhagic shock and multiple neurogenic shock inflicted by multiple hits and subsequent hypotension leading to death. In my opinion aforesaid injuries are sufficient to cause death.”

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He also deposed that he had received the RFSL report regarding viscera of deceased Ext.PW10/F. On the basis of result given in chemical report, his final opinion remained the same as he earlier deposed since no poison/alcohol/drug detected in the contents of viscera of deceased.

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PW-11 ASI Ajeet Singh, who is the Investigating Officer of the case, deposed that on 17.11.2014 an information was received to

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the effect that one dead body was lying at Ghatnalu Nallah. Pursuant to this, he along with SI/SHO Partap Singh and other police officials visited the spot at Ghatnalu Nallah and observed that it was not a case of natural death. He recorded the statement of informant Ajay Kumar, Up Pardhan GP Siyun and sent the rukka through police station Shahpur upon which FIR No. 212/2014 was registered. He filled up form 25.35 (1)(A) & 25.35(1)(B) Ex.PW11/A (five leaves). Forensic team too visited the spot at Ghatnalu Nallah in his presence and blood samples were preserved and the same were handed over to him by the forensic team. Thereafter, they brought dead body from Ghatnalu to Zonal Hospital Dharamshala for conducting postmortem of deceased. He moved application Ex. PW10/A in this regard and on next day, the postmortem was got conducted at Zonal Hospital Dharamshala. In the meanwhile, they came to know that an FIR under Section 302 IPC was also registered at P.S. Indora and police team from P.S. Indora also visited ZH, D/shala for verifying the dead body and on 19.11.2014, he handed over documents i.e. Ex. PW11/A inquest papers, PMR Ex. PW10/B, letter addressed to FSL Junga for DNA profiling to Inspector/SHO Tilak Raj in presence of HHC Shahi Pal and HC Mohinder Singh. On 18.11.2014. he handed over the dead body to SHO for further investigation.

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Learned Counsel for the appellants contended that the Trial Court failed to appreciate the delay in lodging the FIR. He asserted that

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in the absence of any reasons justifying the same and on account of unexplained delay in lodging the FIR, the very base of the prosecution story becomes doubtful. They further contended that there are many inconsistencies in the deposition of the various witnesses and contradictory depositions cannot be relied on to convict the appellants as the inconsistencies go to the root of the matter. That presence of the so called eye witnesses at the spot is doubtful in the absence of any corroborative ocular or documentary evidence produced by the prosecution, like the forms, admission register of the centre etc.

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It is an admitted fact that on 15.11.2014, the missing report of the deceased was lodged by Lovedeep who was running the centre, by moving application Ext.PW13/E at Police Station Indora, on the basis of which, rapat No.38 was entered which is Ext.PW13/F. On 18.11.2014, an information was received at Police Station, Indora from Police Station, Shahpur through email that an unidentified body was found at Ghatnalu nullah. Thereafter inquest proceedings were carried out, vide Ext. PW11/A and the body was sent for postmortem to Zonal Hospital, Dharamshala, where postmortem was conducted on 18.11.2014. The parents of the deceased were informed to come to Zonal Hospital, Dharamshala for identification of the deceased and on the same day, the relatives of the deceased identified the dead body as body of Rajinder Singh @ Bhura. The FIR Ext. PW17/A. was registered on 17.11.2014, at 2.50 p.m, at Police Station, Indora on the basis of

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statement of Sukhwinder Singh.

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It is a well settled principle of law that delay simplicitor in lodging the FIR alone is not enough to disbelieve the prosecution's story. There can be no mathematical computation of the time taken in the lodging of the FIR. What the Court has to examine is whether the delay is inordinate and whether any cogent explanation is forthcoming in case or not. Some delay in the lodging of the FIR in some of the cases is only natural and would not detract from the value to be attached to it.

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The Hon'ble Supreme Court in a catena of judgments held that delay in lodging the FIR creates a doubt, if the said delay is not properly explained. In Satpal Singh Vs. State of Haryana, (2010) 8 SCC 714 , the Hon’ble Supreme Court has observed:-

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"15. This Court has consistently highlighted the reasons, objects and means of prompt lodging of FIR. Delay in lodging FIR more often than not, results in embellishment and exaggeration, which is a creature of an afterthought. A delayed report not only gets bereft of the advantage of spontaneity, the danger of the introduction of a coloured version, an exaggerated account of the incident or a concocted story as a result of deliberations and consultation, also creeps in, casting a serious doubt on its veracity. Thus, FIR is to be filed more promptly and if there is any delay, the prosecution must furnish a satisfactory explanation for the same of the reason that in case the substratum of the evidence given by the complainant/informant is found to be unreliable, the prosecution case has to be rejected in its entirety.”

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The Hon'ble Supreme Court in Kishan Singh (dead) through LRs. Vs. Gurpal Singh & others, (2010) 8 SCC 775 , with

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regard to the effect of delay in lodging FIR has held as under:-

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"22. In cases where there is a delay in lodging a FIR, the Court has to look for a plausible explanation for such delay. In absence of such an explanation, the delay may be fatal. The reason for quashing such proceedings may not be merely that the allegations were an after thought or had given a coloured version of events. In such cases the court should carefully examine the facts before it for the reason that a frustrated litigant who failed to succeed before the Civil Court may initiate criminal proceedings just to harass the other side with mala fide intentions or the ulterior motive of wreaking vengeance on the other party. Chagrined and frustrated litigants should not be permitted to give vent to their frustrations by cheaply invoking the jurisdiction of the criminal court. The court proceedings ought not to be permitted to degenerate into a weapon of harassment and persecution. In such a case, where an FIR is lodged clearly with a view to spite the other party because of a private and personal grudge and to enmesh the other party in long and arduous criminal proceedings, the court may take a view that it amounts to an abuse of the process of law in the facts and circumstances of the case. (vide :Chandrapal Singh &Ors. Vs. Maharaj Singh &Anr., AIR 1982 SC 1238; State of Haryana &Ors. Vs. Ch. Bhajan Lal &Ors., AIR 1992 SC 604; G. Sagar Suri &Anr. Vs. State of U.P. &Ors., AIR 2000 SC 754; and Gorige Pentaiah Vs. State of A.P. &Ors., (2008) 12 SCC 531).”

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24. In Jai Prakash Singh Vs. State of Bihar and another, (2012)

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4 SCC 379 , the Hon'ble Supreme Court has held that extraordinary

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delay in lodging of FIR raises grave doubt regarding the truthfulness of allegations. The Hon'ble Court held as under:-

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"12. The FIR in a criminal case is a vital and valuable piece of evidence though may not be substantive piece of evidence. The object of insisting upon prompt lodging of the FIR in respect of the commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of actual culprits and the part played by them as well as the names of eye- witnesses present at the scene of occurrence. If there is a delay in lodging the FIR, it looses the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of large

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number of consultations/deliberations. Undoubtedly, the promptness in lodging the FIR is an assurance regarding truth of the informant's version. A promptly lodged FIR reflects the first hand account of what has actually happened, and who was responsible for the offence in question."

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In Manoj Kumar Sharma & others Vs. State of Chhattisgarh & another, (2016) 9 SCC 1 , the Hon'ble Supreme Court has held that delay in lodging FIR often results in embellishment, which is a creature of an afterthought and on account of delay, FIR not only gets bereft of advantage of spontaneity, danger of coloured version or exaggerated story being introduced in FIR, creeps in. It further held that extraordinary delay in lodging FIR raises grave doubt about the truthfulness of allegations made therein.

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Now reverting back to the case in hand, Sukhwinder Singh appeared in the witness box as PW-1 and deposed that on 11.11.2014 at about 1.30 a.m., Satnam, Kamal, Mintu and Gaggi came in the centre from outside and some of his inmates complained to them that Rajinder @ Bhura had fight with them. At that time, Bhura was on first floor and on this, Kamal asked to call Rajinder from the first floor and when Rajinder came down, all the above four persons made Rajinder lie down on the floor and started beating him. Mintu was carrying fan belt and Gaggi was carrying a danda and they all gave beatings to Rajinder, which continued till 5 a.m. and blood started oozing out from his head. Thereafter, Rajinder was taken to first floor and the blood which was lying on the spot, was got washed by accused Kamal from a boy with

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the help of water. After that, according to PW-1, he went to sleep and on the next day, they asked Lovedeep about Rajinder @ Bhura, who disclosed that he was admitted in the hospital. He further deposed that after two days, when they again asked Lovedeep about Bhura, he disclosed that Rajinder was sent to his house and when on 16.11.2014 Panchayat came and they unlocked the centre, all of them ran to their respective houses and thereafter they disclosed the entire incident to Sarpanch Jora Singh. He also deposed that on 17.11.2014, they came to Raja-Khasa and police was also intimated. He further deposed that they could not inform the police from 11.11.2014 upto 17.11.2014 because they were locked in the centre and were not allowed to talk to anybody. PW-2 also deposed that on 11.11.2014, at about 1.30 a.m., Kamal, Gaggi, Mintu and Satnam gave beatings to Rajinder @ Bhura upto 5 a.m. and blood started oozing out from his head, after that body of Rajinder was taken to first floor and the blood was washed by them and thereafter all of them slept. He also deposed that after 2-3 days, Lovedeep came and when they inquired about Rajinder, he disclosed that Rajinder was admitted in the hospital and 2-3 days thereafter, they again inquired about Rajinder from Lovedeep, on this, he disclosed that Rajinder had been sent to his house. PW-5 Sukhchain Singh also deposed that on 11.11.2014, at about 1.30 am, Kamal, Satnam, Mintu and Gaggi came from outside and they started giving beatings to Rajinder till 5 am. and thereafter, he sustained injuries on his body and

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blood started oozing out. He further deposed that at 5 am, Rajinder was taken to first floor and the blood which was lying on the floor was got washed away and then they went to sleep and did not know what had happened. He also deposed that when they inquired about Rajinder from Lovedeep, he disclosed that Rajinder had been shifted to hospital and two days later, they again inquired about Rajinder from Lovedeep, who disclosed that Rajinder had been sent to his house after having been discharged from the hospital.

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However, the aforesaid version of PW-1, PW-2 and PW-5 does not inspire confidence and their conduct is highly improbable. All of them deposed that on 11.11.2014 from 1.30 am till 5 am, the accused persons were continuously beating Rajinder and blood started oozing out from his head and thereafter Rajinder was taken to first floor and the blood lying on the spot was washed away and then they all had gone to sleep. As per statement of PW-1, there were 25-30 inmates and 4-5 staff members in the centre, as per PW-2, there were 35-40 boys in the centre, whereas, as per PW-5, there were 30 inmates in the centre. Thus, it has come in the evidence on record that there were 25-40 inmates and 4-5 staff members in the centre at the time of the occurrence. PW-5 also admitted that when the incident occurred, all the inmates were awaken and they were made to awake by the accused to see the occurrence. However, it is quiet surprising that none of them had made any complaint against the accused persons from 11.11.2014

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to 17.11.2014, which is quite unnatural. It is also highly improbable that the incident had occurred in the centre during midnight at about 1.30 am and after the incident, all the inmates had gone to sleep without reporting the matter to anybody. Further,it is highly improbable and unnatural that none of the said witnesses alongwith 30-40 inmates and the staff members raised alarm or tried to rescue the deceased from the clutches of the accused persons. In cross-examination, PW-1 admitted that they came out of the drug de-addiction centre on 16.11.2014 at about 4 pm and thereafter they did not go to Police Station to report the matter, rather he had gone to his village after leaving the drug deaddiction centre. It has not been explained by him as to why he had not reported the matter to the police when he came out of the centre on 16.11.2014 at about 4 pm. PW-3 Jora Singh deposed that on 16.11.2014, he came to know that Rajinder Singh @ Bhura has been murdered in the de-addiction Centre at Raja Khasa and on this, he alongwith Jeet Singh and others went to de-addiction Centre, where Sukhwinder Singh told them that on 11.11.2014 at about 1.30 a.m., Kamal, Mintu, Satnam, Gaggi, Honey and Nikka gave beatings to Bhura and killed him. PW-4 Jeet Singh, father of the deceased, also deposed that on 16.11.2014, his grandson received phone of Rampa, who disclosed that Rajinder Singh was murdered and thereafter they proceeded to drug de-addiction centre, where on inquiry, PW-1 Sukhwinder had disclosed that Rajinder was murdered by Mintoo,

¶105

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¶106

22

¶107

Gaggi, Satnam, Kamal, Honey and Nikka by belt and danda on 11.11.2014.The prosecution has failed to explain as to why PW-3 & PW4 had not reported the matter to the police when on 16.11.2014 they came to know that Rajinder Singh had been murdered. The conduct of PW-3 and PW-4 is highly improbable as on 16.11.2014 they came to know that the deceased had been murdered, but they did not bother to go to the police station to lodge the report rather they went to the deaddiction center first. Hence, the delay in lodging the FIR corrodes the credibility of the prosecution story. Since the FIR was lodged by the complainant after an inordinate and unexplained delay of six days, the story of the prosecution has become wholly unreliable.

¶108

While appreciating the evidence, the Court has to take into consideration whether the contradictions/omissions had been of such magnitude that they may materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements on trivial matters without affecting the core of the prosecution case should not be made a ground to reject the evidence in its entirety.

¶109

Where the omission(s) amount to a contradiction, creating a serious doubt about the truthfulness of a witness and other witness also make material improvements before the court in order to make the evidence acceptable, it cannot be safe to rely upon such evidence [ State of Rajasthan v. Rajendra Singh, (2009) 11 SCC 106] .

¶110

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23

¶112

The discrepancies in the evidence of eye-witnesses, if

¶113

found to be not minor in nature, may be a ground for disbelieving and discrediting their evidence. In such circumstances, witnesses may not inspire confidence and if their evidence is found to be in conflict and contradiction with other evidence or with the statement already recorded, in such a case it cannot be held that prosecution proved its case beyond reasonable doubt ( Mahendra Pratap Singh v. State of Uttar Pradesh, (2009) 11 SCC 334 ).

¶114

The Hon'ble Supreme Court in the landmark case of Sunil

¶115

Kumar Sambhudayal Gupta and others Vs. State of Maharashtra,

¶116

(2010) 13 SCC 657 , has held that:-

¶117

“30. While appreciating the evidence, the court has to take into consideration whether the contradictions/ omissions had been of such magnitude that they may materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements on trivial matters without effecting the core of the prosecution case should not be made a ground to reject the evidence in its entirety. The trial court, after going through the entire evidence, must form an opinion about the credibility of the witnesses and the appellate court in normal course would not be justified in reviewing the same again without justifiable reasons. (Vide State v. Saravanan (2008) 17 SCC 587)

¶118

31. Where the omission(s) amount to a contradiction, creating a serious doubt about the truthfulness of a witness and the other witness also makes material improvements before the court in order to make the evidence acceptable, it cannot be safe to rely upon such evidence. (Vide State of Rajasthan v. Rajendra Singh (2009) 11 SCC 106).”

¶119

In the case of Krishnegowda and others vs. State of

¶120

Karnataka, (2017) 13 SCC 98 , the Hon'ble Supreme Court observed

that:-

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24

“32. ……...the minor variations and contradictions in the evidence of the eyewitnesses will not tilt the benefit of doubt in favour of the accused but when the contradictions in the evidence of the prosecution witnesses proves to be fatal to the prosecution case then those contradictions go to the root of the matter and in such cases the accused gets the benefit of doubt.

¶125

33. ..……..As said by Bentham, "witnesses are the eyes and ears of justice". In the facts on hand, we feel that the evidence of these witnesses is filled with discrepancies, contradictions and improbable versions which draws us to the irresistible conclusion that the evidence of these witnesses cannot be a basis to convict the accused.”

¶126

In the instant case, there are material contradictions in the statements of alleged eye witnesses PW-1, PW-2 and PW-5, which renders the prosecution story highly doubtful. PW-1, in his deposition, stated that the deceased was beaten with fan belt and danda , whereas, PW-2 and PW-5 stated that the deceased was beaten with belt and danda . Both the aforesaid witnesses had not stated that the deceased was beaten with fan belt. All these witnesses stated that the deceased was taken to the first floor, whereas the spot map nowhere indicates that the deceased was taken to the first floor. PW-1 and PW-5 stated that blood was got washed by accused Kamal from a boy, whereas, PW-2 stated that the accused had washed the blood. The prosecution has failed to examine the boy who allegedly washed the blood on the first floor. PW-3 Jora Singh deposed that when he came in the centre, there were 4-5 employees in the centre, whereas, PW-2 deposed that staff members were not there in the centre. As per PW-2, on 16.11.2014 the Panchayat of their village headed by Sarpanch Jora Singh came to the centre and made them to run away after breaking the lock of the gate of the centre, whereas, PW-3 Jora

¶127

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¶128

25

¶129

Singh stated in cross-examination that lock was not broken, however, it was asked to be opened. There is also nothing on record to suggest that how and when the body of Rajinder was taken out from the centre.

¶130

Thus, after perusing the testimonies of PW-1, PW-2, PW-3, and PW-5 this Court finds that there are material contradictions which create a serious doubt on the story of the prosecution and therefore such type of testimony of the witnesses is liable to be discredited.

¶131

The presence of PW-1, PW-2 and PW-5 is highly doubtful in the centre. PW-1 stated that he was admitted in the centre on 30.10.2014 by his parents, whereas, in his cross-examination, he stated that he was admitted by his brother-in-law. He also stated that when he was admitted in the centre, a form was filled, however, no such form has been produced on record by the prosecution. The prosecution has failed to produce any record to show that PW-1 was a drug addict. Moreover, PW-1 did not know the name of any person when he allegedly stayed in the centre for seventeen days. Similarly, no record has been produced by the prosecution to show that PW-2 and PW-5 were admitted in the centre, as such, the presence of PW-1, PW-2 and PW-5 is highly doubtful in the centre. Furthermore, the presence of deceased in the centre is also doubtful. As per statement of father of the deceased, i.e. PW-4, he had got admitted the deceased in the centre, however, no record of his admission has been produced on record. The presence of accused persons in the centre is also doubtful.

¶132

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¶133

26

¶134

The Investigating Officer, who appeared in the witness-box as PW-21, admitted that he did not take into possession any document to show that the accused persons were the inmates of the Drug de-addiction Centre.

¶135

So far as the recovery of danda and fan-belt is concerned, as per prosecution story, accused Yashpal @ Mintu made a disclosure statement during custody on 20.11.2014 that he had hidden one danda and one fan belt in the room of drug de-addiction centre at Raja-Khassa after commission of the offence and he also disclosed that he can get the weapon of offences recovered. To this effect, a memo was prepared, which is Ext. PW16/A. However, no reliance can be placed on the aforesaid disclosure statement Ext. PW16/A as on the recovery memo Ext. PW16/B, there is tampering in the date as figure ‘19’ has been made as figure ‘20’ by overwriting below the signatures of the accused. There is no explanation on behalf of the prosecution with respect to the overwriting on the memo Ext. PW16/B, which is material piece of evidence. Moreover, the disclosure statement, was allegedly made on 20.11.2014, whereas accused Yashpal was arrested on 17.11.2014 and as per the evidence on record, the police had searched the premises of the centre on 17^th , 18^th , 19^th November, 2014 but they could not find the danda and fan belt till 19.11.2014 which is highly improbable. It seems highly improbable that after committing murder, the accused persons would keep danda and fan belt under the quilt in

¶136

( 2024:HHC:5212 )

¶137

27

¶138

the drug de-addiction centre itself. Furthermore, PW-7 Sanjeev Kumar did not support the prosecution case with respect to the disclosure statement allegedly made by accused Yashpal @ Mintu made to the police. As such, we think that it is not safe to place reliance on this part of the prosecution case.

¶139

It has also come in the prosecution evidence that during investigation on 18.11.2014, a team of RFSL lifted the blood samples from the spot as well as from the lobby in the presence of PW-9 Kulbir Singh. PW-10 Dr. Keshav, who conducted the postmortem on the dead body of the deceased also handed over the clothes and blood samples of the deceased to the police and the same were sent to RFSL, Dharamshala for analysis. As per RFSL report Ext.PW21/G, human blood of group ‘B’ was detected in Ext.3 (blood lifted from the spot), Ext.4a to Ext. 4d (clothes of the deceased) and Ext. 5 (blood sample of the deceased). However, the prosecution has failed to explain as to how the blood had appeared on the spot when it was washed away from the spot as PW-1, PW-2 and PW-5 have categorically deposed that after the incident, the blood was washed away from the spot. PW-20 ASI Rajinder Kumar (Investigating Officer) also admitted in his crossexamination that he did not notice any blood stains on 17.11.2014 when they visited the spot.

¶140

In Sattatiya alias Satish Rajanna Kartalla Vs. State of Maharashtra, (2008) 3 SCC 210 , the Hon’ble Supreme Court held as

( 2024:HHC:5212 )

28

under:-

“26. …………..Undisputedly, the place from which half blade is said to have been recovered is an open place and everybody had access to the site from where the blade is said to have been recovered. It is, therefore, difficult to believe the prosecution theory regarding recovery of the half blade. The credibility of the evidence relating to recovery is substantially dented by the fact that even though as per the Chemical Examiners Report the blood stains found on the shirt, pant and half blade were those of human blood, the same could not be linked with the blood of the deceased. Unfortunately, the learned Additional Sessions Judge and High Court overlooked this serious lacuna in the prosecution story and concluded that the presence of human blood stains on the cloths of the accused and half blade were sufficient to link him with the murder.”

¶145

We cannot lose sight of the fact that many persons, including the deceased could have blood group ‘B’. However, no DNA test was conducted to conclusively prove that the blood lifted from the spot and matched was the blood of the deceased only and none else especially when the credibility of the evidence relating to recovery of blood from the spot is substantially doubted by the fact that the blood was washed away from the spot after the incident, as deposed by the prosecution witnesses themselves. Therefore, the learned trial Court had wrongly held that since the blood that was lying on the spot matched with the blood group of deceased, it is a strong incriminating circumstance against the accused persons to link that the deceased was subject to beatings and during such beatings, blood oozed out from his person and fell on the floor.

¶146

Accused Baljinder Singh was arrested on 17.11.2014 and

¶147

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¶148

29

¶149

as per prosecution case, he had thrown the dead body of deceased in the Indica car of accused Kamal Jeet bearing registration No.HR-51AA8425. However, the prosecution has failed to explain as to why on 17.11.2014, the police did not bother to take accused Baljinder to the place where the dead body was thrown. The police had taken accused persons Harjinder Singh on 19.11.2014 and Kamal Jeet Singh on 25.12.2014 for identifying the place where the dead body was thrown, instead of accused Baljinder who was never taken to the place where he had allegedly thrown the body. It is also highly improbable that the dead body of the deceased was lying on National Highway for six days and nobody had seen it and the same was recovered at Shahpur only when the FIR was lodged i.e. on 17.11.2014. This fact also raises suspicion about the case of the prosecution

¶150

Law is well settled with regard to the fact that howsoever strong the suspicion may be, it cannot take the place of proof. Strong suspicion, coincidence, grave doubt cannot take the place of proof. The Hon’ble Supreme Court in Raj Kumar Singh Vs. State of Rajasthan, (2013) 5 SCC 722, on this aspect of the matter held as under:-

¶151

“21.Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that may be proved and will be proved. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason, that the mental distance between may be and must be is quite large and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between may be

¶152

( 2024:HHC:5212 )

¶153

30

¶154

true and must be true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between may be true and `must be true, the court must maintain the vital distance between conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense.”

¶155

From the detailed examination and analysis of the evidence produced on record, it appears to us that various discrepancies, contradictions, omissions and infirmities are found in evidence of the prosecution. It becomes manifestly clear that the prosecution has miserably failed to prove the guilt of the accused much less beyond reasonable doubt. There has been a total wrong appreciation of evidence on record by the learned trial Court, which has resulted in miscarriage of justice.

¶156

Accordingly, all the criminal appeals i.e. Criminal Appeals No.322, 306, 343 & 402 of 2018, preferred by the appellants-convicts are allowed and the impugned judgment of conviction and order of sentence dated 04.07.2018, passed by learned Additional Sessions Judge-I, Kangra at Dharamshala, District Kangra, H.P., in Sessions Case No.13-I/VII/2015, are set aside. The appellants are acquitted of the charges framed against them. They be set at liberty forthwith, if not

¶157

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¶158

31

¶159

required in any other case. Fine amount, if deposited by the appellants, be refunded to them. Release warrants be prepared forthwith.

¶160

In view of the provisions of Section 437-A Code of Criminal Procedure, 1973, the appellants are directed to furnish personal bonds in the sum of Rs.50,000/- each with one surety each in the like amount to the satisfaction of Registrar (Judicial) of this Court, which shall be effective for a period of six months, with stipulation that in the event of Special Leave Petition (SLP) being filed against this judgment or on grant of leave, the appellants aforesaid, on receipt of notice thereof, shall appear before the Supreme Court.

¶161

The appeals are accordingly disposed of, so also the pending miscellaneous application(s), if any.

¶162

( Tarlok Singh Chauhan ) Judge

¶163

( Sushil Kukreja ) Judge

¶164

July 16, 2024

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(VH) VIRENDER BAHADUR Digitally signed by VIRENDER BAHADURDN: C=IN, O=HIGH COURT OF HIMACHAL PRADESH, OU=HIGH COURT OF HIMACHAL PRADESH SHIMLA, Phone=3c5f9e29e91dda973d928ffd06d59832d2dd97b9e2898117bfa738990a0ea7ba, PostalCode=171001, S=Himachal Pradesh, SERIALNUMBER=fed3018c26866cd3d598cb3749b3fb29d4abef4b84983689d027cb645c9bb134, CN=VIRENDER BAHADURReason: I am approving this documentLocation: Date: 2024.07.16 18:03:13+05'30'Foxit PDF Reader Version: 2023.2.0

Harjinder Singh Alias Nikka v. State of Hp

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Harjinder Singh Alias Nikka v. State of Hp

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