RAKESH KUMAR SON OF SH. HACHHU RAM, RESIDENT OF CHANAUTA, POLICE STATION SARKAGHAT, DISTRICT MANDI, H.P Vs. STATE OF HMACHAL PRADESH

JUDGEMENT

(1.) THESE appeals have been preferred by the appellants Rakesh Kumar and Manjeet Singh against the judgment and sentence of the learned Sessions Judge, Mandi, convicting them for offences under Sections 302 read with Section 34 of the Indian Penal Code sentencing them to life imprisonment and fine of Rs. 10,000/ -, in default of payment of fine to further undergo rigorous imprisonment for one year. The appellants herein alongwith eight other accused were arraigned before the learned Sessions Judge for the murder of Manoj Kumar, who was found dead lying face down in front of hotel River Bank. The prosecution case in brief is that on 9.4.2008 at around 11.10 p.m., PW19 Sh. Dandu Ram, SI, Police Station, Mandi accompanied by HHC Mani Ram and one constable were on patrol duty at Pulgharat. They received information from Sh. Yaqubkhan M.C. Police Station Sadar, Mandi, that some persons were quarrelling near River View Bank hotel. He along with the police party reached the spot at around 11.45 p.m. and noticed a person lying face down in the drain. He recorded the statement Ext.PW1/A of PW1 Sh. Ramesh Chand alias Nikku, complainant under Section 154 Cr.P.C on this basis, F.I.R. No. 168/08 dated 10.4.2008 Ext. PW21/A under Sections 302/34 I.P.C. was recorded at the Police Station Sadar, Mandi The gist of the State is that the complainant was working as Masalachi (employed for cleaning utensils) at hotel River Bank for the last about three years. On 9.4.2008 at around 10.30 p.m. when he was in the kitchen, he heard people quarreling on the road side. He along with other employees went to the spot and noticed four persons were beating up the deceased Manoj Kumar. They had come to the spot in car No. HP -52A -1868 which was parked in front of the hotel. In the meantime, four local residents of the area came there on a scooter and rescued Manoj Kumar from these persons, who were the Manager and employees of the liquor vend. Manoj Kumar told the local persons that he knew his assailants and that his scooter was parked near the liquor vend. He told that he would be going to his house on his own. He further states that he saw Manoj Kumar running away from the liquor vend and being chased by these persons in a Mahindra jeep. One of them was holding a 'bat like danda'. The case then proceeds that the jeep driver and these two persons caught hold of Manoj Kumar in front of the hotel and beat him up by inflicting blows on his head and face. As a result, the deceased fell down in a drain on the roadside whereupon he informed the owner of the hotel PW7 Sh. Kirti about the incident. He identified these assailants as Sh. Deepak driver and two other persons whom he could recognize but did not know the name.

(2.) MANOJ Kumar succumbed to his injuries; one broken handle of the bat was lying near the dead body which was recovered. The statement was sent to the Police Station where it was recorded as F.I.R. No. Ext. PW21/A. The photographs of the scene were taken and proved on record as Ext.PW19/A -1 to PW19/A -9 including the negatives Ext.PW19/A -10 to PW19/A -20 and spot map Ext. PW19/B. Blood stained soil and broken base ball bat Ext.P1 were also taken into possession. Inquest report Ext.PW9/A and Ext.PW9/B was prepared and autopsy of the deceased was conducted at Zonal Hospital, Mandi by PW9 Dr. Jiwa Nand Chauhan. Accused Girdhari Lal, Dila Ram, Hans Raj, Jiwan Kumar, Deepak, Rakesh Kumar son of Sh. Hari Singh, Baldev, Rakesh Kumar son of Sh. Hachhu Ram and Yashpal were arrested. Accused Rakesh Kumar son of Sh. Hachhu Ram was sent to judicial custody to enable his identification. Mahindra Bolero Jeep No. HP.33 -9280 and Alto Maruti Car No. HP -52A -1868 used in the commission of the crime were taken into possession. On the objects sent for forensic examination, the F.S.L. laboratory found that base ball bat which was alleged to be the weapon of assailants, shirt of the deceased and the blood preserved from the Ahatha (which is a place where people consume liquor) contained blood of 'A' group which was that of Manoj Kumar. Human blood was not found on the underwear etc. of Baldev accused No. 8. The viscera of the deceased was found to have 136.37 mg% alcohol without any poison. In these circumstances, accused Jiwan Kumar, Rakesh Kumar son of Sh. Hari Singh and Hans Raj were challaned for offences under Sections 302, 147,148,149 and 212 IPC and accused Dila Ram, Deepak, Girdhari Lal, Yashpal, Rakesh Kumar son of Sh. Hachhu Ram, Baldev and Manjeet Singh alias Commando also challaned for offences under Sections 302, 147, 148 and 149 I.P.C. The prosecution produced 24 witnesses whereas in defence, two witnesses were examined. On conclusion of the trial, only the appellants were found guilty and were sentenced for the offences as charged.

(3.) /5 persons beating up one person. He did not stop there but proceeded towards the shop of Nittu 'Kabari', who paid him Rs. 25,000/ - and informed him that remaining amount of Rs. 15,000/ - would be paid to him on the next day. On his return journey, he saw that one person holding his arm who was running from the liquor vend towards Hotel River Bank was being chased by 2/3 persons. They were running in the middle of road and the person running ahead fell down on the road. When he got up, the second person gave a blow with a bat on the head of the person who was running and that person fell down into the drain. He identified this bat as of sky blue colour. He says that the person, who had attacked, was wearing white colour shirt, blue jean pant and white shoes. He identified these persons in Court as Rakesh Kumar and Manjeet Singh. He says that the persons, who were chasing the deceased, were identified by him in the headlights of his pick -up. He then describes the assault by saying that accused Rakesh Kumar pushed Manoj Kumar and thereafter accused Manjeet Singh gave a blow on the head of Manoj Kumar with a bat. He says that he was frightened and did not interfere in the quarrel which he thought was a small matter and would be sorted out by these persons. In his cross -examination, he submits that his statement was recorded on 1.5.2008 when he returned from Jammu and Kashmir. He says that he narrated this fact about the fight to his maternal uncle Sh. Nagu (not produced in evidence) on 27th/28th April, 2008. He then says that Nittu Kabari had asked him on telephone to collect the payment. He did not state to the police that a sum of Rs. 25,000/ - was taken by him from Nittu Kabari and that the remaining amount would be collected on the next day. He says that he had stated before the police that a quarrel had taken place between the liquor vend and Hotel River Bank when he was going to the shop of Nittu kabari but this fact is not recorded in the statement made to the police. He then states that he did not state to the police that 4/5 persons were beating one person which fact was stated for the first time in Court. He says that identification was conducted in the jail in the month of May, 2008. He denied the suggestion that the photographs of the accused Manjeet Singh were shown to him before test identification parade. He says that he stayed at the house of Nittu for 4/5 minutes and returned home at around 11.15 p.m. on the same day. He then admits that he never told anybody about the incident including his family members and learnt about the death of Manoj Kumar on 28.4.2008 when he returned from Jammu. He was called by the police, who according to him, might have known from Raju and Nagu that he was present on the spot. From 10.4.2008 to 28.4.2008, he never informed anybody about the occurrence. 4 PW1 Ramesh Chand, complainant was declared hostile as he refused to support the case of the prosecution. He was cross examined at length by the Public Prosecutor. In cross examination by the counsel for the accused, he says that the police had forced him to become a witness in this case and threatened that in case he does not state, whatever they wanted him do, he would be involved in false case(s) of possession of contraband (charas). It is out of fear that he stated whatever the police wanted him to do. Then he says that it is a fact that liquor vend is not visible from Hotel River Bank. On the fateful day, there was a party being celebrated in Hotel River Bank. He says that it is situated on the National Highway. He has signed his name in Hindi but cannot read or write Hindi. Ext.PW1/A was not read over and explained to him. He states in cross examination: The police who conducted the investigation forcibly made me witness of this case and the police officials also threatened me that in case I do not become witness of this case, he would plant a charas case against him and would arrest me. Therefore, due to fear of the police I left my job of the hotel River Bank and now I am at my native village.