STATE OF HIMACHAL PRADESH Vs. SURINDER MOHAN

JUDGEMENT

(1.) Leave granted.

(2.) The respondents were tried for offences punishable under Sections 302, 380, 457, 120-B read with Section 34, IPC by the Additional Sessions Judge (1), Kangara at Dharamshala in Sessions Case No. 8 of 1988 and were acquitted for the said offences by order dated 8th May, 1990. The State preferred Criminal Appeal No. 460 of 1990 before the High Court of Himachal Pradesh. The appeal was dismissed by judgment and order dated 2-1-1998 solely on the ground that the Chief Judicial Magistrate had failed to comply with the mandatory directions contained in clause (a) of sub-section (4) of Section 306, Cr.P.C. as no statement of approver was recorded by the Chief Judicial Magistrate during the committal proceedings, which vitiates the committal of the accused persons to Court of Session and consequently the trial by the Sessions Judge.

(3.) Before dealing with the question of law arising in this appeal, we would state in nutshell the prosecution version. It is the say of the prosecution that Dr. Kewal Krishan was a medical practitioner having roaring practice in village Gummer. Accused Surinder Mohan was resident of the same village and was posted as a compounder in civil dispensary, Jawalamukhi. Besides his official duties he was also engaged in private medical practice at his village and was assisted by his wife. Because of the roaring practice of Dr. Kewal Krishan, Surinder Mohan was having malice and he wanted to do away with the life of Dr. Kewal Krishan. It is also the case of the prosecution that Surinder Mohan gave threats to Dr. Kewal Krishan to do away with his life and for this letter was sent through his sister's son Ravinder Kumar (PW 14). It is further say of the prosecution that on 24th March, 1988 at 10 p.m. Sandeep Kumar (PW 29) accused who later turned as an approver was going to attend 'Jagrata' at Biru Chaudhary's residence at village Dehrian. When he could reach near the government dispensary, Gummer, he came across Surinder Mohan and Biru Ram and at that time Surinder Mohan was having his scooter. Surinder Mohan asked Sandeep Kumar as to where he was going; Sandeep Kumar apprised him about his going to attend the 'Jagrata'; Accused Surinder Mohan told him that he had gone to attend one Nirmala Devi who was seriously ill and unfortunately the medicines which were required for her treatment were not with him. He therefore requested Sandeep Kumar that he should call Dr. Kewal Krishan as the required medicines were available with him. For this purpose accused Surinder Mohan repeatedly requested and stated that life of Nirmala Devi was at peril and therefore he should help. As Sandeep Kumar agreed, Surinder Mohan took him on his scooter and alighted him near shop of Kedar Nath (PW 16). Sandeep Kumar thereafter called upon Dr Kewal Krishan and requested him to accompany for giving treatment to Nirmala Devi. Hardly, Sandeep Kumar and Dr. Kewal Krishan could cover the distance of 300 yards, Surinder Mohan met them along with the accused Biru Ram. It is further alleged that when they could cover distance of 100 yards further, other accused Shashi Paul and Amar Singh also met them. Thereafter when they reached near the government dispensary, Ghummer, accused Surinder Mohan and Biru Ram pounced upon Dr. Kewal Krishan, Surinder Mohan gagged the mouth of Dr. Kewal Krishan with a piece of cloth and tried to push him towards the nearby Nallah. Accused Amar Singh and Shashi Pal came from behind and thereafter Dr. Kewal Krishan was dragged about 10 steps downwards. At that stage, Biru Ram attacked with knife (chhura) and on receiving the stab injury, Dr. fell on the ground. Subsequently, accused Surinder Mohan asked Sandeep Kumar as to who other person was in the room of doctor. After stating that Vijay Kumar was in the room and he was knowing everything, Sandeep Kumar cursed Surinder Kumar as to why he was cheating and stated that he would reveal the entire episode to his father. Surinder Mohan assured him to pay Rs. 5000/-, but he did not submit to his wishes and went on shouting. Then Surinder Mohan attacked Sandeep Kumar with a knife, but with great difficulty he ran away from the spot. At that stage also, accused persons and Biru Ram attacked upon him with knife which hit him on his back. With great difficulty he reached his house and after cleaning the blood from his person he silently went to his room and did not disclose anything regarding the incident to anybody. It is his further say that on the next morning when he went to answer the call of nature near the Nallah, he noticed the red colour of water and also the dead body of Dr. Kewal Krishan in the bushes.