Judgment:
Surjit Singh, J.
1. Appellant Kehar Singh has preferred this appeal against the judgment, dated 10th March, 2005, of learned Additional Sessions Judge, Fast Track Court, Chamba, whereby he has been convicted of offences, under Sections, 302 and 201 of the Indian Penal Code, and sentenced to undergo imprisonment for life and to pay fine of Rs. 50,000/-, for offence, under Section 302 of the Indian Penal Code, and to undergo rigorous imprisonment for three years and to pay fine of Rs. 5,000/-, for offence, under Section 201 of the Indian Penal Code.
2. Case of the prosecution, which led to the aforesaid conviction and sentence of the appellant, may be Whether reporters of the local papers may be allowed to see the judgment? summed up thus. Deceased Khiali Ram was native of village Basanda, where he used to live with his father, PW-15 Jai Karan. He set up a business of cable operator in a nearby village, known as Beauti, which is at a distance of 11/2 km from village Basanda. It appears that he had arranged for his residence at village Beauti also, but normally he would return to his native place, in the evening, after day's business. On 21st August, 2002, he met PW-4 Kalyan Singh, his real brother, at a place called Ghatili Nullah, around 5.30 p.m., and told him to wait for him as he would be joining him for going to native place, after closing business place at village Beauti. PW-4 Kalyan Singh waited for deceased Khiali Ram for quite some time and when the latter did not turn up he left for village Basanda. Deceased did not return home that night. Next day the father, the brothers and other relatives of the deceased started searching for him, at the places of their relatives, but got no clue.
3. On 25th August, 2002, report was lodged with the police about the deceased having gone missing. On 29th August, 2002, PW-3 Bhimya Ram spotted a dead body in Rahla Nullah, close to village Rahla, where the appellant has his residence. The head of the body had been severed, but it was lying close to the torso. PW-3 Bhimya Ram informed the Pradhan of the Panchayat, namely PW-6 Subhash Kumar, who, in turn, informed the police telephonically. Police reached the spot soon thereafter. Dead body was identified to be that of deceased Khiali Ram by PW-1 Chuni Lal and a Chacha of the deceased, named Sat Pal. Father of the deceased was also informed. He too reached the spot.
4. Police recorded the statement of the father of the deceased (PW-15 Jai Karan), under Section 154 of the Code of Criminal Procedure, on the spot. The said statement is Ex. PW-10/A. It was sent to the Police Station for the formal registration of the case. Case was registered vide FIR Ex. PW-10/B. As per statement Ex. PW-10/A, PW15 Jai Karan informed the police that he suspected that his son had been murdered by a gang of murders operating in the area and that similar murders had taken place in the past also.
5. Inquest was conducted. Inquest report is Ex. PW-20/A. Thereafter, dead body was sent to the hospital for postmortem examination. Request was made, in writing, for postmortem examination. The same is Ex. PW1/ A. PW-11 Dr. Vishal Mahajan conducted the postmortem. Following ante-mortem injuries were noticed:
Maggots present. Head is separated from body.
Head-skull separated from body. No overlying skin. Eye ball absent.
L.W. 6cm x 3cm on Rt. elbow flexor. L.W. 15cm x 10cm on Rt. I/F. L.W. over ant. Chest wall covering. Whole of anterior chest, extending 6cm above the xiphisternum. Underlying ribs fractured on both sides. Liquefied viscera present in the thoresic cavity.
According to the postmortem, time lag between the death and the postmortem examination was 5-10 days. Postmortem was conducted on 30th August, 2002.
6. Police did not get any clue for about 21/2 months. On 8th November, 2002, complaint, copy Ex. PW-14/B, was submitted to the learned Chief Judicial Magistrate, Chamba, by Chuni Lal (PW-1). In the said complaint, it was alleged that on the night intervening 21st & 22nd August, 2002, a drinking party to celebrate birthday of a son of appellant Kehar Singh had taken place, in which the deceased and PW-19 Madan Lal had also participated and that in the course of drinking bout some altercation had taken place between appellant Kehar Singh and the deceased and thereafter Madan Lal (PW-19) went to buy Bidis from a nearby shop and when he returned he saw the dead body of Khiali Ram, with head severed, and appellant Kehar Singh standing near it, with a Drat in his hand. Learned Chief Judicial Magistrate forwarded that complaint to the police, in exercise of his powers, under Section 156 of the Code of Criminal Procedure. Police returned that complaint to the Chief Judicial Magistrate, with the remarks that the case had already been registered. On 13th November, 2002, police recorded statement of PW-19 Madan Singh, under Section 161 of the Code of Criminal Procedure. He stated facts similar to those disclosed in the complaint, Ex.PW-14/B. Appellant Kehar Singh was arrested. He made a disclosure statement leading to discovery of a Drat Ex. P-6, which had allegedly been used to commit the crime.
7. Investigation of the case revealed that after committing the murder, appellant Kehar Singh carried the beheaded dead body to a Nullah, with the help of three other persons, namely his wife Vikrama Devi, his tenant Nand Lal and tenant's wife Urmila Devi, who were arrayed as co-accused with him.
8. Police challaned the appellant and the above- named three persons. Case was committed to the Sessions Court by the learned Judicial Magistrate, in whose Court challan was filed. It was assigned to the Fast Track Court, headed by an Additional Sessions Judge. Presiding Officer of the Fast Track Court charged the appellant with offences, under Sections 302, 201 read with Section 34 of the Indian Penal Code. Appellant's accomplices were charged with offence, under Section 201, read with Section 34 of the Indian Penal Code. All the four accused pleaded not guilty. So, they were put on trial.
9. Prosecution examined 20 witnesses to bring the charge home to the appellant and his accomplices. At the end of the trial, three accomplices of the appellant were acquitted. Appellant was convicted and sentenced, as aforesaid.
10. We have been taken through the entire evidence. Also, we have considered the submissions made on behalf of the appellant by his counsel, as also the submissions made by the learned Assistant Advocate General supporting the judgment of the trial Court.
11. Case of the prosecution rests on direct evidence, in the form of testimony of PW-19 Madan Lal, who claims to be an eye-witness, as also the recovery of weapon of offence, pursuant to the disclosure statement, Ex. PW-2/D, made by the appellant.
12. We have gone through the statement of PW-19 Madan Lal. Before appreciating his testimony, we would like to point out that this witness is a cousin of the father of the deceased. He is resident of the same village as the father of the deceased, namely village Basanda. He returned to the village on the very night of the alleged occurrence. He was present at the time when the police reached the site where the dead body was found lying, on 29th August, 2002, per testimony of PW-3 Bhimya Ram, who was first to spot the dead body. Though PW-19 Madan Lal denied that he was present when the dead body was retrieved from the Nullah, he stands contradicted, with respect to this part of his statement by his statement, under Section 161 of the Code of Criminal Procedure, Ex. BX, with which he was duly confronted. In the said statement, portion A to A, he specifically stated that he was present on the spot when the dead body was found on 29th August, 2002. Despite all these things, PW-19 Madan Lal took about 21/2 months to disclose to the police that he was an eye-witness to the killing of the deceased by the present appellant. Reason given by the witness is that he had been threatened by the appellant that in case he disclosed the fact to anybody he would meet the fate of the deceased. The witness does not say what development did take place during this intervening period of 21/2 months, which led to the disappearance or the lessening of the fear, which was caused by the aforesaid threat of the appellant.
13. PW-19 Madan Lal stated that on 21st August, 2002, when he reached a place called Gateli Nullah, deceased met him there and told him that he was going to the house of appellant Kehar Singh, where birthday party was going on. He stated that he also accompanied the deceased to the house of appellant Kehar Singh, where they consumed liquor. He further testified that after some time deceased and the appellant started quarrelling, with respect to certain loan which the deceased had raised from appellant Kehar Singh. He then went to a nearby shop of PW-13 Puran Chand to buy Bidis and when he reached he saw Khiali Ram's dead body with its head severed and appellant standing near the dead body with Drat Ex. P-6 in his hand. His testimony is not corroborated by PW-13 Puran Chand, the Shopkeeper, from whom he allegedly purchased Bidis on that night. Prosecution did not examine any other witness to seek corroboration to the testimony of this witness, though it has come in the evidence that on the fateful night a party was going on at the house of the appellant, where several persons had gathered.
14. PW-19 Madan Lal stated that he disclosed the occurrence, as witnessed by him, to one Zalam Singh and one Master Sat Pal, after two months of the incident, but the prosecution did not examine either of these two witnesses. He also stated that he was taken to an Advocate, named Rajinder Sharma and he narrated the incident to that Advocate also, who then drafted a complaint, but said Rajinder Sharma, Advocate was also not examined. Even the police did not record his statement, under Section 161 of the Code of Criminal Procedure. We have been told that now said Rajinder Sharma, Advocate, is no more. PW-1 Chuni Lal contradicts him that he went to Rajinder Sharma, Advocate, and the latter drafted the complaint when he narrated the incident to him. PW-1 Chuni Lal says that he himself went to the Advocate, after PW-19 Madan Lal informed him that he was a witness to the killing of deceased Khiali Ram. Madan Lal does not say he informed PW-1 Chuni Lal that he was a witness to the occurrence. Rather, he specifically denied in the cross- examination by the defence that he had informed PW-1 Chuni Lal that he had seen the appellant with a Drat near the beheaded dead body of the deceased at appellant's house.
15. We are of the considered view that because of PW-19 Madan Lal having kept silent for about 21/2 months, despite his being a close relative of the father of the deceased, his being resident of the same village as the deceased and his being present on the spot, when the dead body was recovered, his testimony cannot be believed unless corroborated in material particulars by some other evidence. But, as already noticed, corroborating evidence is wanting.
16. As regards recovery of weapon of offence, i.e. Drat Ex. P-6, allegedly at the instance of the appellant, prosecution examined PW-2 Kishori Lal and PW-6 Subhash Kumar, Pradhan of the Panchayat. Both the witnesses stated that statement Ex. PW-2/D, leading to the discovery of Drat, had not been made by the appellant in their presence, though they did state that the appellant was brought to the village by the police and taken to his house, from where he produced Drat Ex. P-6. According to these witnesses, appellant went to one of the rooms of his house and brought out Drat Ex. P-6, but the Investigating Officer of the case, namely PW-20 Sukh Dev says that the Drat was produced by the accused from his kitchen.
17. Also, there is no definite evidence that the head of the deceased had been severed by means of Drat Ex. P-6 and by no other weapon. PW-11 Dr. Vishal Mahajan only expressed the opinion that severance of head of a human being with weapon like Ex. P-6 is possible. In view of the above-stated position, we hold that the case of the prosecution does not stand proved, beyond reasonable doubt. Consequently, appeal is accepted. Judgment of the trial Court convicting and sentencing the appellant, as aforesaid, is set aside and he is acquitted. He, being in jail, serving out the sentence awarded by the trial Court, is ordered to be released forthwith, in case his detention is not required in connection with any other case. Release warrant be prepared accordingly.