CR.A/49/2003 on 30 December 2012

1. Cr. Appeal No.565 of 2002.

2. Cr.Appeal No.49 of 2003.

3. Cr.Appeal 91 of 2003

Judgment Reserved On: 30.8.2011.

Date of Decision: December ,2011. _______________________________________________

1. Cr.Appeal No. 565 of 2002.

Sunil Kumar son of Sh.Munshi Ram, R/O village Seola, Police Station Barmana, District, Bilaspur, H.P.

….Appellant.

Versus.

State of H.P through Secretary Home, Government of H.P. Shimla.

….Respondent. For the Appellant: Mr. Anup Chitkara, Advocate.

For respondent-State Mr. R.K.Sharma, Addl. Advocate

General.

2. Cr.Appeal No. 49 of 2003.

State of H.P.

….Appellant.

Versus.

Sunil Kumar son of Sh.Munshi Ram, resident of village Seola, Police Station, Barmana, District Bilaspur, H.P.

….Respondent. For the Appellant: Mr. R.K.Sharma, Addl. Advocate

General.

For the respondent: Mr.Anup Chitkara, Advocate.

3. Cr.Appeal No. 91 of 2003.

State of H.P.

….Appellant.

Versus.

1. Sunil Kumar son of Sh.Munshi Ram, resident of village Seola, Police Station, Barmana, District Bilaspur, H.P.

2. Kashmir Singh son of Sh.Sukh Ram, resident of village Mangrot, Police Station, Sadar, District Bilaspur, H.P.

3. Chetanya Kumar son of Sh. Roshan Lal caste Brahmin, resident of village-Markand Police Station Sadar, District Bilaspur, H.P.

….Respondents. For the Appellant:

Mr. R.K.Sharma, Addl. Advocate

General. For the respondent-1

Mr.Anup Chitkara, Advocate.

For respondent-3.

Mr.T.S.Chauhan, Advocate.

Coram:

Hon’ble Mr. Justice R.B.Misra, Judge.

Hon’ble Mr. Justice Dev Darshan Sud, Judge.

Whether approved for reporting1?. Yes.

Dev Darshan Sud,J.

These three appeals are being disposed of by this judgment as they arise out of the same judgment of the learned Sessions Judge, Bilaspur convicting the appellant Sunil Kumar herein for offences under Section 304 Part-I I.P.C. to undergo rigorous imprisonment for a term of five years and fine of Rs.10,000/- and in default of payment of fine, to further undergo rigorous imprisonment for a term of six months under Section 304 Part-I I.P.C. The other two accused, namely, Kashmir Singh and Chetanya were acquitted by the learned trial court.

2. Criminal Appeal No. 565 of 2002 has been preferred by the accused Sunil Kumar challenging his conviction, Criminal Appeal No. 49 of 2003 titled State of H.P. Vs. Sunil Kumar has been preferred by the State praying for enhancement of sentence imposed upon the accused Sunil Kumar, and Criminal Appeal No. 91 of 2003 titled State Whether reporters of the Local papers are allowed to see the judgment..

of H.P. Vs. Sunil Kumar and others has been filed by the State challenging the acquittal of the other two accused and praying for the conviction of all the accused under Section 304 read with Section 34 I.P.C.

3. The facts of the case, in brief, are that on 4.9.2001, PW2 Kewal Ram, who was the driver of truck No. HP-24-6125, after loading cement from A.C.C. factory Barmana, was proceeding towards Dhami. The deceased Balbir Singh was the conductor of the truck. When the truck reached near Ghagus, PW4 Chint Ram asked for a lift and he was taken on board. After the truck reached near the hand pump at Mangrot, four boys who were standing in the middle of the road signaled the truck to stop and asked for a lift. They forcibly boarded the truck and the three accused started beating the deceased as he had refused to comply with their request. Sunil Kumar reached out for a tie rod in the truck and hit the deceased on his head who became unconscious. The fourth boy accused PW11 Pawan Kumar remained outside the truck. PW4 Chint Ram and PW11 Pawan Kumar asked the three to desist from their unlawful activities but of no avail. PW 4 Chint Ram alighted from the truck. In the meanwhile, PW3 Baldev Singh, driver of truck No.HP-11-2825 which truck owned by Devi Ram Bansal also owner of the first truck, reached there. PW2 Kewal Ram and PW4 Chint Ram along with PW3 Baldev Singh went to the house of PW10 Hans Raj Sharma, Pradhan of the Gram Panchayat. On the way, PW4 Chint Ram disclosed the names of the accused. PW10 Hans Raj Sharma, Pradhan advised them to take the injured to the hospital for immediate medical treatment and when they reached there at around 9 P.M. the deceased was examined by PW1 Dr.N.K.Sankhyan, who declared him dead on arrival. Thereafter, PW2 Kewal Ram and PW3 Baldev Singh reported the matter to the police. Report Ext.PE was lodged on the basis of which investigation commenced. PW9 S.I. Ranjha Ram took up the investigation. He prepared inquest report Ext.PB and Ext.PC and site plan Ext.PL. All the three accused were arrested from the house of PW11 Pawan Kumar on 6.9.2001. While in custody, accused Sunil Kumar made a disclosure statement under Section 27 of the Evidence Act stating that he get the wheel Panna (wheel tie rod) recovered. Statements of PW4 Chint Ram and PW11 Pawan Kumar were recorded under Section 164 Cr.P.C. by the learned Chief Judicial Magistrate, Bilaspur. All the three accused were arraigned for offences under Section 302 read with Section 34 I.P.C.

4. The prosecution examined twelve witnesses in support of its case. The defence produced five documents in support of its case. On conclusion of the trial, the learned trial Court acquitted two accused, Kashmir Singh and Chetanya and convicted Sunil Kumar under Section 304 part-I I.P.C. sentencing him to rigorous imprisonment for five years and fine of Rs. 10,000/- and in default of payment of fine to further undergo rigorous imprisonment for a term of six months. The convict is now in appeal while the State appeals against the acquittal of the other accused and also for enhancement of the sentence imposed upon accused Sunil Kumar.

5. The sequence of the case events and occurrence does not present much difficulty as from the evidence on record, the presence of the accused at the scene of the incident is established, more so, when we consider the trend of cross examination of the eye witnesses. We will advert to this part of the evidence later.

6. We also advert to the statement of the accused recorded under Section 313 Cr.P.C. Accused Sunil Kumar states that the case has been filed against him for political reasons. In reply to question No.28, he states that he has been falsely implicated in the case because of political rivalry. He says that his father is a member of the Congress party and the B.J.P. was at that time in power in the State. He says that his father has been implicated in false cases. His father was accused in the murder of one Dhayana Ram in which he was arrested and bailed out and again discharged by the Court. He states that there was no evidence against him but despite that the State persisted in prosecuting his father. He relied upon the orders passed by the Court in support of his defence. He says that he does not know PW2 Kewal Ram. PW4 Chint Ram is a liar because of old enmity with his father, who when he was the President of Gram Panchayat Jukhala, case of Devki Devi, sister of this witness was pending before his father and in that case, this witness had approached his father asking him to help her out. His father refused to do so, the case was decided against the sister of this witness and that is the reason why he holds a grudge against this accused. Pawan Kumar, according to him, has appeared in evidence who was under police pressure. The name of PW11 Pawan Kumar also figures in the F.I.R. All four of them were arrested and were beaten up by the police. Pawan Kumar is the only son of his parents, who visited the Police Station and told them that in case their son is released, he will state in evidence whatever the police wanted him to say. He (Pawan Kumar) was threatened in front of the other accused that in case he did not state in evidence what the police wanted him to do, he will be falsely implicated in a murder case. The police had full advantage of the situation and they got the statements of both PW4 Chint Ram and PW11 Pawan Kumar recorded under Section 164 Cr.P.C. However, they were not relied upon by the police. He says that he relies upon these statements in defence. The case was a total fabrication; the police took out the tie rod from the truck which was usually lying there and forcibly got his signatures on the papers while he was in police lock up showing that it has been recovered at his instance. The other two accused have denied any wrong doing or complicity in the crime.

7. At the out set, we note that this defence of political rivalry has not been established from the record of the case. There is no oral or documentary evidence on record to substantiate any part of this plea. But we ignore this and proceed with the case on the evidence on record. The documents relied upon, namely, Ext.D1 copy of the order passed by learned Sessions Judge, Bilaspur in case titled Munshi Ram Vs. State of H.P granting bail to the petitioner therein, Ext.D2 order passed by the learned Sessions Judge on 17.12.1999 stating that there is no evidence against accused-Munshi Ram and he was discharged, Ext.D3 decision of the Gram Panchayat, Ext. D4 again decision of the Gram Panchayat, Ext.D5 and Ext.D6 are the statements of the two witnesses recorded under Section 164 Cr.P.C. establishes nothing save and except that the father of the accused was discharged in a case filed against him but not a whisper about any political rivalry.

8. We now advert to the other evidence on record. PW1 Dr.N.K.Sankhyan states that he had conducted the post mortem of deceased Balbir Singh on 5.9.2001. He records that both eyes of the

deceased were swollen and were of blackish blue in colour. Blood and fluid was coming out of both nostrils, left side of face was soiled with blood and fluid. Oral cavity was having blood fluid and larynx and trachea were full of blood/fluid. There was swelling over the scalp in area of 6cm x 8 cms over left parieto temporal region. On dissection and after reflecting the scalp there was gross contusion over inner surface of scalp over both side parieto temporal region. There was contusion over right fronto parieto tamporal region in area of 10 cms x 10 cms over the muscles of skull in this area with depressed fracture of temporal bone right side. The depressed bone was in area of 6 cms x 6 cms and the fracture was towards the pinna side. After opening the skull cap, there was extradural hemorrhage. No injury to the brain was seen with naked eye. No other injuries were present on the body of the deceased. In his opinion, Balbir Singh had died due to asphyxia and a result of chocking due to head injury. Probable time that elapsed between injury and death was few minutes to three hours and between death and post mortem was 12 hours to 18 hours. He proved on record post mortem report Ext.PD and stated that injury found on the deceased was possible with Ext.P1 which is the wheel Panna (wheel tie rod). He says that there was external injury towards the left side of the head while bone fractures on the right side of the head. He admits that if there is scuffle and the victim strikes against the iron rod of the window of the truck and falls on a hard surface, fracture can be possible. He says that due to the head injuries, blood trickled down which resulted in ultimate death. He admits that there was one injury on the person of the deceased and there was possibility of other injuries on the body if the deceased had been kicked and punched.

9. We now advert to the evidence of PW2 Kewal Ram, who was the driver of the truck. He says that on the fateful day i.e. 4.9.2001, the truck was loaded with cement from A.C.C. factory, Barmana and he proceeded at around 7.30 p.m. towards Dhami. Deceased Balbir Singh was the conductor of the truck. He was the son of the maternal uncle of this witness. When the truck reached near Ghagus, PW4 Chint Ram signaled for a lift and he was taken on board. When they reached near hand pump at Mangrot, four boys were standing in the middle of the road, who forced him to stop the truck asking him for a lift. They approached the truck from the side where the conductor was seated and boarded it despite resistance from him. All of them started beating the deceased Balbir Singh. Sunil Kumar struck him with wheel tie rod on the head and the other two accused started kicking and punching him. As a result of the injuries sustained on his head, Balbir Singh became unconscious and fell down. The fourth person PW11 Pawan Kumar remained outside the truck. PW4 Chint Ram and PW11 Pawan Kumar were asking the accused not to beat up the deceased. After this incident, Sunil Kumar accused asked him to leave the place. PW4 Chint Ram got down from the truck at the spot and he (Kewal Ram) drove it towards Mangrot and stopped it near a hotel/Dhaba, where he raised a hue and cry. In the meantime, PW 3 Baldev Singh driver of the other truck also reached the spot. PW4 Chint Ram was walking and he along with PW3 Baldev Singh went to the house of PW10 Hans Raj, Pradhan Gram Panchyat, Mangrot. On the way, PW4 Chint Ram disclosed the names of the accused as Sunil Kumar, Chetanya and Kashmir Singh. They reported the matter to the Pradhan, who asked them to take the injured to the hospital where they reached at around 9 P.M. The injured was declared dead on arrival. Thereafter he and PW3 Baldev Singh went to the Police Station, Bilaspur and lodged report Ext. PE. The police visited the spot on the next day. He identified the wheel Panna Ext.P1 which was the same instrument of the assault used on the deceased. In cross-examination, he denied the suggestion that on the day of incident, there was 7/8 boys who had parked their vehicles near the hotel for taking meals and these persons were moving about on the road. He admits that PW4 Chint Ram had got down at the site of the incident. He also admitted the suggestion that the deceased had refused to give lift to the accused. The answer given by him is reproduced:

“It is correct to suggest that the deceased refused to give the lift to the accused.”

10. The other suggestions immediately following this is that the deceased had kicked one of the accused, who fell down on the road and that when the truck started moving, the other boys asked the conductor to come down from the vehicle and ask for forgiveness from the boys (accused) whom he had assaulted. He also denied the suggestion that he had asked the deceased as to why he kicked one of the boys. The other suggestion which follow is that these boys opened the window and started dragging out the deceased. He replied that it was the accused who had opened the window. The other suggestion which again follows is that in the scuffle when the deceased was being dragged out from the truck window, he (deceased) struck his head against the iron rod of the window and fell down on the mettled road. In fact the trend of the cross-examination is that a scuffle was, in fact, in progress. He admits that there was no blood on the head of the injured which was visible and that he narrated the entire incident to the Pradhan. He admits that he had told the police that Sunil Kumar accused struck the deceased on the head with wheel tie rod. On suggestion given by accused Chetanya, he says that the deceased died not because of fist and kick blows but as a result of injury caused by the wheel tie rod.

11. PW3 Baldev Singh was the driver of other truck No. HP-11-2825 which was also owned by Devi Ram Bansal and this truck was also loaded with cement and proceeding to Dhami. He says that near Mangrot, PW2 Kewal Ram came from behind in a truck and was shouting that Balbir Singh had been beaten up. Thereafter, he parked his truck near the hotel/Dhaba, where PW2 Kewal Ram told him that Balbir Singh was beaten by three boys. Thereafter he, PW2 Kewal Ram and PW4 Chint Ram went to the house of Pradhan PW10 Hans Raj Sharma and apprised him about the entire incident, who asked them to take the injured to the hospital for medical treatment. There the doctor on duty told them that Balbir Singh was dead. He has been cross-examined at length but there is nothing to suggest that what he states in examination-in-chief is not the correct version of the incident.

12. PW4 Chint Ram is the other witness, who had taken a lift in the truck. He says that he is running a Chana Bhatura shop at Ghagus for the last 20 years. On the fateful day, he had taken lift in the truck from Ghagus to Mangrot (his native village). PW2 Kewal Ram was the driver of the truck and Balbir Singh was the conductor. When they reached near Mangrot village, four boys were standing in the middle of the road forcing the driver of the truck to slow down and stop. One boy Sunil Kumar went towards the side where conductor was seated (he (accused) was identified in the court) asked him for a lift, the deceased refused to comply with his request on the ground that they have to stop the truck near a hotel/Dhaba which was at a distance of half kilometer ahead. At this, accused Sunil Kumar forcibly opened the window of the conductor was seated and entered the truck. He delivered a blow with wheel Panna (wheel tie rod) on the head of the deceased, who fell down unconscious. The accused Chetanya and Kashmir Singh remained outside the truck. He identified Kashmir Singh, who was present in Court at that time. He was declared hostile and he did not support some portions of his statement recorded by the police. He was cross-examined at length by the learned Public Prosecutor. He admitted that Sunil Kumar and Kashmir Singh are habitual criminals. He says that he got down from the truck when it was stopped after the scuffle. He had seen Balbir Singh in an injured and unconscious condition. He disclosed the names and addresses of these persons to PW2 Kewal Ram which he also disclosed to the Pradhan. He then states: “It is correct to suggest that when the accused were giving beatings with kicks and fists blows, I and Pawan Kumar had advised them not to give beatings to the deceased Balbir Singh. After giving blow of Panna by accused Sunil Kumar, all the accused including Pawan Kumar have left the place of occurrence. It is correct that all the three accused belong to my area.”

13. It is this part of the testimony which also assumes importance as he admits the case of the prosecution in toto. In cross- examination by the other accused, the suggestion given to him is that the boys wanted a lift. The other suggestion admitted by him is that Balbir Singh had refused to comply with the command of the accused to give them a lift. He denied the other suggestion that the conductor kicked one of the boys after opening the window. He does not accept the suggestion that when the scuffle was taking place, the deceased was dragged out from the truck window when he struck against the iron rod and then fell down on the road. He says that he admits that his sister Devki Devi is married in village Manjhot and that she has some property dispute with her devar (brother-in-law) etc. and that a case was pending in the Gram Panchayat, Jukhala where Munshi Ram was the President of the Gram Panchayat. The other suggestions about his approaching to Munshi Ram for favourable outcome of the case are denied by him. He admits having recorded a statement under Section 164 Cr.P.C. before the learned Chief Judicial Magistrate.

14. PW6 Parkash Chand is a witness to the recovery. PW10 Hans Raj Sharma, Pradhan of Gram Panchayat, Makari states that on 4.9.2001 at around 8.30 p.m., his uncle PW4 Chint Ram along with driver PW2 Kewal Ram and PW3 Baldev Singh came to his house told him that 3/4 boys had beaten up the conductor of truck No HP-24- 6125 on which he tried to contact the police. He says that the names of the assailant were not disclosed to him. He was declared hostile and was cross-examined by the Public Prosecutor.

15. PW11 Pawan Kumar, who was one of the party along with other accused who stopped the truck, says that at around 7 p.m. on 4.9.2001, he went to the house of PW10 Hans Raj Sharma, Pradhan Gram Panchayat, Makari as Kashmir Singh has to obtain a certificate from the Pradhan because his house has been damaged due to heavy rain. Thereafter he along with Kashmir Singh went to the hotel/Dhaba of one Sanju where Sunil Kumar and Chetanya were present having meals. Kashmir Singh asked Sunil Kumar and Chetanya

to stay in his house during the night. They started towards Ghagus through the main road. When they reached near the hand pump, he saw a truck coming from Ghagus side and stopped it from which PW4 Chint Ram alighted. Sunil Kumar asked the conductor for a lift as he had to go towards Jukhala. When he tried to take the lift forcibly, conductor of the truck kicked him due to which Sunil Kumar fell down on the ground. He was declared hostile and cross examined at length. He admits that after the incident, all the accused went to his house at the night when the police came there. This witness was also one of the accused in the case. He admits in his cross-examination that it was dark night and that the head lights of the truck were on during the period when there was a scuffle. He also admits that he disclosed the names of all the accused persons to the police in a statement which was recorded under Section 161 Cr.P.C. We advert to a statement under Section 164 Cr.P.C. which was recorded before the Chief Judicial Magistrate, Bilaspur in which he says that he is a resident of Mangrot and a student of boys school, Bilaspur where he studying in plus one. On 4.9.2001 he along with Kashmir Singh went to the house of the Pradhan to collect certificates/certified documents. When he was returning from the house of the Pradhan then near the hotel of one Sanju, he and Kashmir Singh met Chatenya and Sunil Kumar. Kashmir Singh asked both of them to stay in his house in the night. When they reached near the hand pump on the road side, one truck which was coming from the Ghagus side, reached there. Sunil Kumar, Kashmir Singh and Chatenya blocked its progress by standing in the centre of the road. When the truck stopped, all three of them asked the conductor to open the window but their request was not complied with. After some time, Chint Ram opened the door/window of the truck and alighted therefrom. Thereafter Sunil Kumar boarded the truck and assaulted the conductor. He was beaten up with fist cuffs and thereafter with a tie rod. This statement is in concord to what he states in his evidence in the Court. We advert to the evidence on the record where he denies the suggestion put by the accused that during the scuffle, the deceased struck his head against an iron rod of the window/door where he was seated and then fell down on the road. He says that no such incident took place. He says that no such incident took place. This is the evidence of the eye witnesses of the incident. The learned trial Court on the evidence on record convicted accused Sunil Kumar and acquitted accused Kashmir Singh and Chetanya Kumar.

16. We have heard Mr. Anup Chitkara, learned counsel appearing for accused Sunil Kumar in Criminal Appeal No. 565 of 2002 and Criminal Appeal No. 49 of 2003 and Mr.T.S.Chauhan, learned counsel appearing for accused-Chetanya Kumar in Criminal Appeal No. 91 of 2003 and gone through the evidence.

17. Mr. Anup Chitkara, learned counsel contends that the conviction of Sunil Kumar cannot be sustained as there are material contradictions in the testimonies of the eye witnesses. In particular, he refers to the testimony of PW2 Kewal Ram and PW4 Chint Ram. According to him, PW2 Kewal Ram states that all the four boys came towards the conductor and boarded the truck forcibly. While PW4 Chint Ram says that three boys asked for a lift whereafter Sunil Kumar accused forcibly opened the window where the conductor was seated and entered the truck striking the conductor on the head. We cannot accept this testimony as being a material contradiction of a nature which destroys the very foundation of the case. Admittedly, even in cross-examination, the case made out by the accused is that they were asking for a lift. The situs of the scuffle whether inside or outside the truck looses much significance when once it is established that the deceased was, in fact, assaulted and then struck on the head with a wheel tie rod.

18. Learned counsel then contends that in the absence of any identification of the accused, it cannot be said what part was played by each one of them. He submits that it is the admitted case by PW2 Kewal Ram, PW4 Chint Ram, PW11 Pawan Kumar and PW12 ASI Ramesh Chand that it was a pitch dark night and it was not possible to identify each of the accused. We do not find any significance in the statement for a reason that PW11 Pawan Kumar in his cross- examination admits that the head lights of the truck were on at that particular point of time. Learned counsel then submits that baring PW11 Pawan Kumar, who knew the accused, none of the others could identify them by name. We cannot accept this statement as PW2 Kewal Kumar has identified all the accused in the Court. Learned counsel submits that a test identification parade was the least which the prosecution could have conducted in which event the identity of the accused could be known eliminating the element of fabrication and false implication. In the facts of the present case, we cannot accept this submission.

19. We refer to the decision of the Supreme Court in Simon and others Vs. State of Karnataka, (2004) 2 SCC 694 which holds that test identification parade is the discretion of the Investigating Agency.

The purpose of the test identification parade is to test the substantive evidence of identification for the purpose of corroboration. {See: Sampat Tatyada Shinde Vs State of Maharashtra, (1974) 4 SCC 213.}. The test is to check the veracity of the identifying witnesses in Court so as to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade. {See Abdul Waheed Khan and others Vs. State of A.P., (2002) 7 SCC 175.}

20. Adverting to this precedent, what we find is that there is a suggestion in the defence in the evidence on the record to show that the accused had, in fact, being shown to the witnesses prior to the occurrence. The only dispute, if any, can be with the names and not about their identity. We cannot forget that three witnesses, namely, PW2 Kewal Ram, PW4 Chint Ram and PW11 Pawan Kumar admit the presence of all the accused on the spot. We are also not oblivious of the fact that the suggestion by the defence is, in fact, that it was the deceased who kicked one of the accused when he asked for a lift, whereupon he was asked to get down from the truck and apologize to the accused. In this view of the matter, the test identification parade looses all significance. The fact, as to who struck the deceased with the iron rod, cannot be said to have been not established. This is clear from the testimony of PW2 Kewal Ram and PW4 Chint Ram.

21. We advert now to the evidence in defence. We have already considered the fact that the defence of political implication stands no where established on the record. We advert to Ext.D5 which is a statement of PW4 Chint Ram recorded under Section 164 Cr.P.C. This statement was recorded on 19.9.2001 and states that on the fateful day i.e. on 4.9.2001, he asked for a lift from the driver of truck

No.HP-24-6125. He boarded the truck which was proceeding towards Mangrot. About half kilometer before that, out of four boys, three of them were standing in the middle of the road and the fourth on the side of the road, forced the truck to stop. One of them Chetanya came towards the side of the conductor and asked him to open the window. The conductor refused to oblige. Thereafter all three boys forcibly opened the window and started kicking and punching the conductor. Out of them, one Sunil Kumar picked up the wheel tie rod and hit the conductor on his head, who fell down unconscious and died later on. He says that Sunil Kumar is from his village and again said that Kashmir Singh is from his village. The names of Sunil Kumar and Chetanya were disclosed to him by the Pradhan. Thereafter he went home. Ext.D6 is the statement of PW11 Pawan Kumar recorded under Section 164 Cr.P.C to which we have already referred to. We are alive to the fact that a statement under Section 164 Cr.P.C. is not substantive evidence and can be used only to corroborate or contradict a witness. This fact stands established by the judgment of the Supreme Court in State of Delhi Vs. Shri Ram Lohia, AIR 1960 S.C. 490 holding: “13…………………..It is clear therefore that the learned Judge relied on some statement of Aggarwal recorded under S. 164 of Criminal Procedure Code. The statement under S. 164 referred to was not specifically put to Aggarwal even to contradict him. Statements recorded under S. 164 of the Code are not substantive evidence in a case and cannot be made use of except to corroborate or contradict the witness. An admission by a witness that a statement of his was recorded under S.164 of the Code and that what he had stated there was true would not make the entire statement admissible much less that any part of it could be used as substantive evidence in the case. The

Additional Sessions Judge therefore erred in law in using the statement of Aggarwal under S.164 to come to the conclusion that he had been won over. If that statement is excluded from consideration it is a matter of pure guess that Aggarwal had been won over. If that statement is excluded from consideration it is a matter of pure guess that Aggarwal had been won over after his examination-in-chief was over”

(Pp 492 &493)

22. To the similar effect is the decision of the Supreme Court in Ram Krishan Singh Vs. Harmit Kaur and another, AIR 1972 S.C. 468 holding: “8 A statement under Section 164 of the Code of Criminal Procedure is not substantive evidence. It can be used to corroborate the statement of a witness. It can be used to contradict a witness. The first information report was considered by the Sessions Judge. Any special consideration of the statement of Hazura Singh under Section 164 of the Code of Criminal Procedure could not have produced a different result by reason of the conclusions of the Sessions Judge as to rejecting the oral evidence of Nihal Kaur, Harmit Kaur and Hazura Singh as unreliable, untruthful and unworthy of credence”.

(P 469)

23. We need not multiply precedent any further. Though we refer to the judgment of the Allahabad High Court in Ram Lakhan Sheo Charan and others Vs. State of U.P., 1991 Crl.L.J. 2790, but we find that these statements have been relied upon by the defence which has tendered them in evidence. They have not been put to any of the witnesses for the purpose of corroboration but none the else form sheet anchor of the defence of the accused, who says that they were not proved in evidence because they were not helping the prosecution.

24. A reading of the statements does not show that the defence is probablised even if they rely upon them but aliunde of the statements, we find that the identity of the accused having been

established beyond any reasonable doubt, we also find their participation in the crime is also established beyond doubt. The evidence of the eye witnesses as noted by us above leaves no doubt in our mind that they participated in the crime. What we find is that it is inexplicable as to why three of them were standing in the middle of the road bullying PW2 Kewal Ram to stop the truck forcing them to give a lift and on refusal by the deceased to beat him up. Surely, refusal to give a lift cannot be treated as a provocation.

25. While exercising the Appellate jurisdiction, we are guided by the principles as laid down by the Supreme Court in Mohammed Ankoos and others vs. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad (2010)1 SCC 94. The Supreme Court holds: “15. This Court has, time and again, dealt with the scope of exercise of power by the Appellate Court against judgment of acquittal under Sections 378 and 386, Cr.P.C. It has been repeatedly held that if two views are possible, the Appellate Court should not ordinarily interfere with the judgment of acquittal. This Court has laid down that Appellate Court shall not reverse a judgment of acquittal because another view is possible to be taken. It is not necessary to multiply the decisions on the subject and reference to a later decision of this Court in Ghurey Lal v. State Of Uttar Pradesh (2008)10 SCC 450 shall suffice wherein this Court considered a long line of cases and held thus: (SCC p. 477, paras 69-70) "69. The following principles emerge from the cases above:

1. The appellate court may review the evidence in appeals against acquittal under Sections 378 and 386 of the Criminal Procedure Code, 1973. Its power of reviewing evidence is wide and the appellate court can reappreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law.

2. The accused is presumed innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent.

3. Due or proper weight and consideration must be given to the trial court's decision. This is especially true when a witness' credibility is at issue. It is not enough for the High Court to take a different view of the evidence. There must also be substantial and compelling reasons for holding that the trial court was wrong.

70. In light of the above, the High Court and other appellate courts should follow the well-settled principles crystallised by number of judgments if it is going to overrule or otherwise disturb the trial court's acquittal:

1. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so. A number of instances arise in which the appellate court would have "very substantial and compelling reasons" to discard the trial court's decision. "Very substantial and compelling reasons" exist when:

(i) The trial court's conclusion with regard to the facts is palpably wrong;

(ii) The trial court's decision was based on an erroneous view of law;

(iii) The trial court's judgment is likely to result in "grave miscarriage of justice";

(iv) The entire approach of the trial court in dealing with the evidence was patently illegal;

(v) The trial court's judgment was manifestly unjust and unreasonable;

(vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/report of the ballistic expert, etc.

(vii) This list is intended to be illustrative, not exhaustive.

2. The appellate court must always give proper weight and consideration to the findings of the trial court.

3. If two reasonable views can be reached--one that leads to acquittal, the other to conviction--the High Courts/appellate courts must rule in favour of the accused."

(at p. 100-101)

26. These principles would be relevant that when we consider the appeal of the State praying for conviction of the other accused. We are not unmindful of the fact that the judgment of acquittal is not to be interfered with lightly but at the same time, we cannot persuade ourselves to hold that the learned trial Court has been correct in acquitting the two accused because what we find is that they were willing participants in the entire fracas. As we note above and repeat that the case of the prosecution is established by the cross examination in defence. What we find is that the presence and participation of the accused persons in the scuffle stands established. There is no explanation on record as to whether the scuffle occurred because of provocation by the deceased but the established motive is that lift was denied to the accused. It is not necessary that each one of them should take turns at bludgeoning the deceased. They had no business to stand in the middle of the highway, stopping the truck without any reason or justification and thereafter set upon the conductor who was well within his right to refuse a lift to the accused.

27. The Supreme Court in Gopi Nath Vs. State of U.P. (2001) 6 SCC 620, the Court holds: 8…………………Section 34 IPC has been held to lay down the rule of joint responsibility for criminal acts performed by plurality of persons who joined together in doing the criminal act, provided that such commission is in furtherance of the common intention of all of them. Even the doing of separate, similar or diverse acts by several persons, so long as they are done in furtherance of a common intention, render each of such persons liable for the result of them all, as if he had done them himself, for the whole of the criminal action be it that it was not overt or was only covert act or merely an omission constituting an illegal omission. The Section, therefore, has been held to be attracted even where the acts committed by the different confederates are different when it is established in one way or the other that all of them participated and engaged themselves in furtherance of the common intention which might be of a pre- concerted or pre-arranged plan or one manifested or developed at the spur of the moment in the course of the commission of the offence. The common intention or the intention of the individual concerned in furtherance of the common intention could be proved either from direct evidence or by inference from the acts or attending circumstances of the case and conduct of the parties. The ultimate decision, at any rate, would invariably depend upon the inferences deducible from the circumstances of each case.

(P.625).

28. To similar effect is the judgment in Nandu Rastogi and another Vs. State of Bihar, (2002) 8 SCC 9, holding: 17………………………….to attract Section 34 IPC it is not necessary that each one of the accused must assault the deceased. It is enough if it is shown that they shared a common intention to commit the offence and in furtherance thereof each one played his assigned role by doing separate acts, similar or diverse………………..

(P.16).

29. We need not reiterate the principle enacted under Section 34 I.P.C. that even separate and diverse acts of the accused whether overt or covert and pre concerted or developed at the spur of the moment if committed in furtherance of the common intention would render each of the accused liable for punishment for the offence as if committed by them. {See: Gopi Nath Vs. State of U.P. (2001) 6 SCC 620 and Nandu Rastogi Vs. State of Bihar (2002) 8 SCC 9.}

30. Now turning to the conviction of the accused, we find from the evidence that it clearly establishes the complicity of all three accused in the crime and we have no doubt in our mind that all of them were intent upon indulging in violence. We cannot treat this as a case where the one accused acted without the participation of the others. Adverting now to the conviction of the accused for the offences under Section 304 part-I I.P.C., we find that the learned Sessions Judge was in grave error in convicting the accused Sunil Kumar for culpable homicide without any intention of causing death of Balbir Singh. What we find from the evidence is that one blow has been given with the iron rod on the head that too in the heat of the moment. We find active participation of all three in beating up the deceased. We do not find that such an act itself constitutes culpable homicide attracting the provisions of Section 304 Part-I I.P.C. The deceased has undoubtedly suffered grievous injuries in the nature of a fracture on the skull. In this event, we find that accused No.1 Sunil Kumar would be guilty of offence under Section 325 I.P.C. for causing grievous hurt without any justification. In this eventuality, we sentence him to the imprisonment already undergone and further to pay a sum of Rs.1,00,000/- as fine which shall be deposited in the learned trial Court within a period of eight weeks from the date of pronouncement of this judgment failing which, he shall undergo the sentence of imprisonment as already imposed upon him by the learned trial Court.

31. So far as other accused are concerned, we also hold that they were willing participants in the entire criminal process of intimidation, wrongful restrained and assault. They cannot stand to plead their innocence more especially when they have actively participated in helping and insisting accused Sunil Kumar in the commission of the crime. They cannot claim their innocence on the ground that they actually did not deliver the blow causing the fatal injuries. Though, we hold that there was common intention to commit murder or causing grievance injuries to the deceased resulting in his death.

32. We, therefore, dispose of all three appeals holding:

(a) That the conviction by the learned Sessions Judge under Section 304 part-I I.P.C. is misplaced and that all the accused are guilty for offences under Section 325 read with Section 34 I.P.C.

(b) Accused Sunil Kumar is directed to pay a fine of Rs. 1,00,000/- which shall be deposited before the learned trial Court, accused Kashmir Singh and Chatenya are sentenced to pay a fine of Rs.75,000/- each to be deposited in the learned trial Court and on such deposit being made, the amount be disbursed to the heirs of the deceased Balbir Singh. We have not imposed sentence of punishment on the three accused as they have already undergone imprisonment during the trial which is about one year and ten days for Sunil Kumar, nine months for Chatenya and similar period for Kashmir Kumar. (C) We direct that the fine be deposited with the learned trial Court on or before 31st March, 2012 failing which each of the accused shall undergo rigorous imprisonment for two years and the sentence shall be duly and faithfully executed by the learned trial Court.

(R.B.Misra),

Judge.

(Dev Darshan Sud),

Judge. December 30,2011(R)