Kishori Lal Raina and State of H.P. vs State of H.P. and Kishori Lal Raina

Bhawani Singh, J.—These two appeals (Criminal Appeal No. 233 of 1988 Kishori Lal Raina v. State, and Criminal Appeal No. 321 State v. Kishori Lal Raina) arise out of the judgment of Additional Sessions Judge (2), Shimla in S. Tr. No. 21-S/7 of 1987, decided on 10-6-1988 convicting the accused u/s 330 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for three years and to pay a fine of Rs. 10,000/-, which on realization, has been made payable to the legal heirs of the deceased. In the first appeal (Cr. A. 233/88) the accused challenged the conviction and sentence u/s 330 of the Indian Penal Code, and in the latter (Cr. A. 233/88), the State has appealed for the enhancement of sentence awarded to the accused. Both these appeals were heard together, and are, therefore, being decided by a common judgment.

The prosecution case against the accused is that in October, 1986 the accused was serving in the Central Bureau of Investigation as an Inspector and was posted at Shimla Branch of this Organization. On 17-10-1986, he called Sukhdev Singh Patwari (PW-1) and Liaq Ram, Kanungo (PW-2) in connection with the investigation of a case relating to the dis-appearance of Dayal Singh, Patwari. These persons were not allowed to leave the office of the Bureau till 24-10-1986. The deceased (Siri Ram) and two ladies were also called by the accused in connection with this investigation. The ladies were permitted to go whereas the deceased was detained for interrogation up to 23-10-1986. On this day, at about 10 P.M. the accused, during the interrogation, gave three slaps at the face of the deceased despite the deceased''s saying that he could not bear the torture. This was done in the presence of Sukhdev Singh (PW-1), Liaq Ram (PW-2) and Nek Mohammed (PW-3). Immediately after receiving the third slap, the deceased fell on the floor on the back side. His head struck against the floor and as a result thereof, he sustained a bone deep lacerated wound where from blood started coming out. The deceased became unconscious and all attempts to revive him failed and soon blood came through the nose and mouth of the deceased. The accused cleaned the same with cotton wool that was taken from mattress lying on the cot in the next room. Some pieces of papers and carbons etc. were also used to clean the floor and then thrown out through the window.

Sukhde v. Singh and Liaq Ram were asked to carry the deceased out of the office and the gate of the building was got opened from the Chowkidar. In this way, the deceased was shifted from the office by Sukhdev Singh, Liaq Ram holding from the legs and the accused from the shoulders and was then placed in front of the Rickshaw Shed located opposite to the said building. Ambulance was arranged by the accused on telephone and the deceased was shifted to the hospital and Sukhdev Singh, Liaq Ram and Constable Ram Nath also went in the Ambulance. At the gate of the Snow don Hospital, the driver switched on the inner lights of the Ambulance. He found after looking at the face of the deceased that he was already dead. As a result thereof, these people were asked by the driver to carry back the dead body which should not have otherwise been brought in the Ambulance, as this vehicle was meant only for carrying patients. Accordingly, the dead body was brought back to the place wherefrom it was lifted. The accused came to the place at about 1.00 A.M. and after coming to know the circumstances under which it was brought back, he asked Sukhdev Singh and Liaq Ram to take the body to the village of the deceased and when they did not agree, he gave the temptation of paying them Rs. 1000/- to meet the carriage charges. Again, they did not agree and the accused went inside his office followed by these persons and there he persuaded them to go to the Police Station and lodge the report that the deceased had fallen on the road outside the Bureau Office while returning after taking his meal from a nearby ''Dhaba''. These persons did not agree and the accused dialled the telephone to the Police Station, Boileauganj and before he could speak, he noticed blood stains near the knee point of his pantaloon, so he immediately placed the receiver on the cradle. He went to his quarter and after changing his pantaloon, informed the Police, Police Station Boileauganj that he had called three persons including the deceased in connection with the investigation of the disappearance of a Patwari and when these persons had gone out to take their meals at 7.00 P.M., one of them had a slip and on account of that suffered head injury resulting in his death. The accused also telephoned the Superintendent of Police at Chandigarh and gave the same story. When the Superintendent of Police asked the accused if any of the persons out of those who had been called for interrogation was available, so that he could speak to him on telephone, the accused replied in the affirmative and handed over the telephone to Sukhdev Singh (PW-1), who informed that the deceased had died in the office of the Bureau as a result of head injury suffered as a consequence of fall resulting from a slap given by the accused. The Police from Boileauganj reached the site at about 4.00 A.M. and recorded the statement of Sukhde v. Singh u/s 154 of the Code of Criminal Procedure in this statement also, Sukhde v. Singh had given the information that the deceased was called to the Bureau Office for investigation and died of slap injury sustained as a result of fall after he was given a slap by the accused. Inquest report was also prepared and the dead body was sent to the hospital for post mortem examination. According to the Doctor, who conducted the post mortem examination, lacerated wound on the left side of the occipital region was responsible for the death of the deceased.

Further, case of the prosecution is that during the course of investigation, the accused made disclosure statement which led to the recovery of his blood-stained pantaloon from the bed room of his residence where it was lying soaked in a pail of water. It was dried up and then sealed in a parcel. Cotton wool, pieces of papers and carbons etc. were also recovered and then sent to the Chemical Examiner and also Serologist who opined that they were stained with human blood.

In order to support the charge, the prosecution examined number of witnesses. The accused was also examined u/s 313 of the Code of Criminal Procedure. He has admitted that the deceased was called for investigation, but it has been denied that he was slapped in the office and that as a result thereof, he fell on the floor and sustained the injury. It is also the case of the accused that he had sent the deceased, Sukhde v. Singh and Liaq Ram to take their meals around 7.00 P.M., and it was at about 10.30 P.M. that he was informed that the deceased slipped while returning after taking the that the accused gave this information on telephone at 2.35 A.M. on 24-10-1986. It was received by A.S.I., Kishore Chand, and was recorded in the Rojnamcha. By this information, the accused informed from Railway Board Building (office of Central Bureau of Investigation) that he had called three persons, namely Shri Siri Ram, Chowkidar (deceased), Sukh Dev Singh, Patwari (P.W. 1) and Liaq Ram, Kanungo (P.W. 2) in connection with the inquiry relating to the missing of Shri Hardyal Singh, Patwari. These people were sent for taking their meals and out of them, Siri Ram (deceased) had died on account of injury sustained due to fall. His dead body was lying on the side of the Mall Road and opposite to the Railway Board Building. By this information the accused has also called the police for necessary proceedings. On receiving this information, Head Constable, Kishore Chand, Constable Raghu Ram, Constable Rajinder Singh and Constable Salender Singh were sent to the spot through Jeep No. HPS-3420 driven by Constable Roshan Lal, driver. The First Information Report is the information recorded u/s 154 of the Code of Criminal Procedure relating to the commission of an offence on which the investigation is commenced. It has to be distinguished from the information received after the commencement of the investigation which is covered by Sections 161 and 162 of the Code of Criminal Procedure. The importance of First Information Report lies in its being the first recorded statement of the occurrence. Delay in lodging it can often result in embellishment, It is a valuable piece of evidence at a trial to corroborate or contradict the evidence of the person lodging it. Therefore, any statement subsequently recorded is a statement made by a person in the course of that investigation and falls within the terms of Section 162 of the Code of Criminal Procedure. The information (Ex. DA) in the present case is, therefore, the information relating to the occurrence. The statement of Sukh Dev Singh (P.W. 1) u/s 154 of the Code of Criminal Procedure has been recorded at 10.20 A.M. on 24-10-1986, obviously, after about eight hours. It was during investigation that statement of Sukh Dev Singh (P.W. 1) was recorded and part of which has been taken to be one recorded u/s 154 of the Code of Criminal Procedure, meals and fell on the road as a result of which the back side of his head hit the road and the deceased suffered a wound. It has been denied that there was any blood on the floor of the office and he used cotton, pieces of papers and carbons etc. to clean it. He has also denied the recoveries of pent, papers, carbons and cotton pieces at his instance. He has stated that he asked Sukhdev Singh and Liaq Ram to lodge the report because the deceased had died while he was in their company and when they refused, he went inside his office and telephoned the Police. His information to the Police was based upon the information given to him by Sukhdev Singh and Liaq Ram. It is important to quote his answers to questions No. 90 and 91:

Q. No. 90."Have you anything more to say? Ans.

I am innocent. I have been falsely implicated in this case because while inquiring into the case of disappearance of Patwari Dayal Singh, I highlighted various omissions and commissions of State Police who had already investigated the case six times. The investigation on behalf of the State Police was conducted by six different parties. Political interference was also there.

Q. No. 91. Then why this case against you and why the witnesses have deposed against you?

Ans. Sukhdev Singh and Liaq Ram have deposed falsely because I was somewhat harsh with them while interrogating them.

Shri M.G. Chitkara, learned Counsel for the accused, submitted that the recording of the First Information Report (Ext. P.N.) on the basis of the statement (Ext. PA) is hit by Section 162 of the Code of Criminal Procedure. According to the learned Counsel, it is Ex. DA which is earlier information to the police in connection with this incident and should be treated to be the First Information Report in this case. There is substance in the contention of the learned Counsel for the accused for the reason that Ex. DA discloses that the accused gave this information on telephone at 2.35 A.M. on 24-10-1986. It was received by A.S.I., Kishore Chand, and was recorded in the Rojnamcha. By this information, the accused informed from Railway Board Building (office of Central Bureau of Investigation) that he had called three persons, namely Shri Siri Ram, Chowkidar (deceased), Sukh Dev Singh, Patwari (P.W. 1) and Liaq Ram, Kanungo (P.W. 2) in connection with the inquiry relating to the missing of Shri Hardyal Singh, Patwari. These people were sent for taking their meals and out of them, Siri Ram (deceased) had died on account of injury sustained due to fall. His dead body was lying on the side of the Mall Road and opposite to the Railway Board Building. By this information the accused has also called the police for necessary proceedings. On receiving this information, Head Constable, Kishore Chand, Constable Raghu Ram, Constable Rajinder Singh and Constable Salender Singh were sent to the spot through Jeep No. HPS-3420 driven by Constable Roshan Lal, driver. The First Information Report is the information recorded u/s 154 of the Code of Criminal Procedure relating to the commission of an offence on which the investigation is commenced. It has to be distinguished from the information received after the commencement of the investigation which is covered by Sections 161 and 162 of the Code of Criminal Procedure. The importance of First Information Report lies in its being the first recorded statement of the occurrence. Delay in lodging it can often result in embellishment, It is a valuable piece of evidence at a trial to corroborate or contradict the evidence of the person lodging it. Therefore, any statement subsequently recorded is a statement made by a person in the course of that investigation and falls within the terms of Section 162 of the Code of Criminal Procedure. The information (Ex. DA) in the present case is, therefore, the information relating to the occurrence.

The statement of Sukh Dev Singh (P.W. 1) u/s 154 of the Code of Criminal Procedure has been recorded at 10.20 A.M. on 24-10-1986, obviously, after about eight hours.

It was during investigation that statement of Sukh Dev Singh (P.W. 1) was recorded and part of which has been taken to be one recorded u/s 154 of the Code of Criminal Procedure, (Ex. PA) while the other parts (Ex. PC) and Ex. (PF) have been shown to have been recorded u/s 161 of the Code of Criminal Procedure. All the three documents are part of the same examination of Sukh Dev Singh (P.W. 1) during investigation consequent upon the receipt of the report (Ex. DA) and can only be used for the purpose covered specifically by proviso to Section 162 of the Code of Criminal Procedure. This statement is, thus, hit by Section 161 of the Code of Criminal Procedure (See: Somappa Vamanappa Madar and Shankarappa Ravanappa Kaddi Vs. State of Mysore, , Pedda Narayana and Others Vs. State of Andhra Pradesh, Mahabir Mandal and Others Vs. State of Bihar, Since Ex. DA has been discarded for the purpose of Section 154 of the Code of Criminal Procedure, the statements of the witnesses have to be evaluated independent of it on the basis of document (Ex. DA) and the contention of Shri M.S. Guleria, learned Assistant Advocate General, that the First Information Report must disclose commission of cognizable offence which is not in Ex. DA, is rejected since Section 154 of the Code of Criminal Procedure does not show that an information of a cognizable offence can only be made to an Officer Incharge of a Police Station {See R.P. Kapur and Others Vs. Sardar Pratap Singh Kairon and Others,

This Section accordingly lays down, inter-alias, that every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction and be read over to the informant and every such information, whether given in writing or reduced to writing, shall be signed by the person giving it and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in that behalf. Therefore, it is quite clear that any information given to the police which sets in motion its machinery for investigating into the matter is to be treated the information to the police and if more than one information is sent, the one which is first in point of time, shall be treated as the First Information Report within the meaning of Section 154 of the Code of Criminal Procedure. It cannot be laid down that only that information has to be treated as the First Information in a case which discloses commission of a cognizable case since that would not only militate against the provisions of Section 154 of the Code of Criminal Procedure but also violates the legislative intent and entail serious consequences since the information supplied to the police may apparently disclose commission of a non-cognizable offence which actually may be a cognizable case and the police may neither record the report nor commence any kind of investigation on such information thereby giving time to the culprits either to run away or twist the facts leading to the commission of the crime and do many more things as to the occurrence. On the other hand, possibility cannot be excluded where the police instead of recording the first version of the incident, which may be the true version of the incident, visit the spot, do some kind of investigation and record the First Information Report on the basis of the information it gathers during this kind of investigation which may result in embellishments causing immense harm to the cause in question. In my opinion, the present case is one such instance.

After rejecting the First Information Report (Ex. PN) in this case and moving on the basis of document (Ex. DA), I proceed to deal with the evidence in the case.

In order to substantiate the allegations against the accused, the prosecution has examined number of witnesses. Although the fundamental aspects of the version of Sukh Dev Singh (P.W. 1), on whose testimony the prosecution case hinges, has already been extracted above as the prosecution case, however, his statement is being referred again for reviewing and appreciating the evidence of the witnesses of the prosecution. He states that on 17-10-1986, he was called to the CBI office along with Kanungo Liaq Ram (P.W. 2) in connection with the investigation of the case regarding the disappearance of Patwari Dayal Singh. The accused was investigating the case and on reaching the office at 10 A.M., both of them were detained in a room of the office and were not allowed to go even during the night time till 24-10-1986 and were released only when the police came after the death of the deceased who had come for this investigation along with two ladies on 20-10-1986. The accused gave beatings to all of them by rotation till he would get tired and continue beating again after sometime. For two days, they were not provided meals at the Government expense nor were they allowed to take their own meals which had been brought by them from their homes in their bags. Thereafter, the Constables, who were on security duty, provided them tea and some eatables during the night time. They also told them not to disclose this fact to anyone. On 23-10-1986, Nek Mohammed (P.W. 4) was also called to the office by the accused and was also given beatings. At 10 P.M. in the night, all of them were made to stand in a room, except Nek Mohammed (P.W. 4) and a few Constables who seated on a sofa. Abruptly the accused came from his chair and slapped the deceased with full force. The deceased requested the accused with folded hands to spare him since he did not have the strength to bear the same but it did not have any affect on the accused who gave him another slap on the second cheek and than the third despite the repeated requests of the deceased not to do so. The deceased fell on the floor and the back side of his head got wounded and blood started oozing out. A lot of blood had collected on the side where his head was lying. The accused tried to bring the deceased in a sitting posture by placing his hands below his shoulders and by pushing him forward. A Constable brought some water in a jug but despite attempt, no water could be given to the deceased. Soon after that, blood came out from the nose and mouth of the deceased. He was given massage by him and Laiq Ram (P.W. 2) but he could not regain consciousness. The accused ordered them to take the deceased out of the room and himself held him by his shoulders while they held his legs. While taking him out of the room, Nek Mohammed (P.W. 4) also followed them. The main gate of the Railway Board Building was locked and it was got opened from the Chowkidar. The deceased was placed on the Mall Road and the accused then went back to his room and telephoned someone to send a vehicle, which came and the deceased was taken to the hospital and the accused deputed Constable Ram Nath with them. On reaching the gate of the building, the Driver switched on the inner light of the vehicle and found that the deceased was already dead. The Driver asked them as to why the dead body had been carried in the jeep and he brought back the vehicle to the Railway Board Building and placed the dead body of the deceased at the same place from where it was lifted. Constable Ram Nath disappeared from the scene and the accused was also nowhere in sight. The gate of the building was also closed. The accused came along with two Constables at about 1 A.M. and asked them as to why the deceased had not been taken to the hospital and they told him that the Driver of the vehicle had brought back the dead body.

The accused intimidated them and gave them temptation of Rs. 1000/- for carrying the dead body in a taxi to the native village of the deceased but they refused. Then the accused got opened the gate of the Railway Board Building and all of them went inside the room. At 2 A.M. the accused telephoned police station, Boileauganj, although before doing so he had been persuading them to go to the police station and lodge the report to which they did not agree. During this time he noticed that his pant was having blood stains near the knee point. He hung up the telephone without talking to the police station and went to his quarter and came back after wearing a different pant. He reported the matter to the police and informed that he had called 3/4 persons to his office in case of the disappearance of Dayal Singh and at about 9 P.M. he had sent those persons to take their meals and while they were going to take their meals, one of them had a slip as a result of which he fell on the road and died on the site. He asked Laiq Ram to make similar statement to the police.

After sometime, the accused received a telephonic call from his S.P. stationed at Chandigarh. The accused gave him the story which he had given to the police telephonically. Thereafter, the accused was asked by the S.P. if anyone out of the persons called for interrogation was available and if so, the telephone should be given to him. On the telephone, he (Sukh Dev Singh) intimated that the deceased was given three slaps in the room and on receiving the slaps, he fell on the floor and died on the spot.

At about 3 or 3.30 A.M., police from police station, Boileauganj, reached there. His statement was recorded u/s 154 of the Code of Criminal Procedure (Ex. DA). As a result of fall, there was blood on the floor and the accused brought out some cotton from the adjacent room and cleaned it. The cotton was thrown outside through the window. He told the police that blood marks had appeared on the pant of the accused and the accused was asked to produce that pant and for that purpose he took them to his quarter where it was found soaked in a water of bucket, pressed by means of a brick. It was taken into possession vide memo. (Ex. PB) but it was not sealed in his presence. The police also collected blood stained cotton that had been thrown by the accused through the window (Ex. PC) and the mattress vide memo. (Ex. PD).

During cross-examination, the witness states that the facts which he has stated in his statement in the Court were disclosed to the police in the early hours of 24-10-1986 while making statement (Ex. DA). He admits that before handing over the investigation to Central Bureau of Investigation, several Investigating parties of the State Police had inquired into the case and he was interrogated by all of them. He was also taken to Delhi for undergoing lie detector test. This investigation lasted for months. He admits that he had been placed under suspension because he had been arrested by the police and detained for more than 48 hours. He admits that he did not make any complaint about his wrongful confinement and physical torture. He states that he did not pass stool during that period as they were not given anything to eat. The lavatory was close-by but the accused did not permit them to go there.

He did not know what statements were given by Laiq Ram (P.W. 2), Nek Mohammed (P.W. 4) and the deceased. He admits that each of them used to be taken to a separate room for questioning and it is for that reason that he did not know what statements were given by Nek Mohammed, Laiq Ram and the deceased but volunteered to say that after the interrogation, all of them used to be huddled in one room out of the four rooms in the premises and subjected to beatings. They were not questioned in the presence of the two ladies, who came with the deceased but beatings were given in their presence to all of them including Nek Mohammed. He denies that while they had gone out to take meals at about 8.30 P.M., the deceased fell on the road and received the injury in question. The accused was dead before he was carried to the hospital but he did not give this impression since he was afraid of the accused. Although he told the police that the accused offered them Rs. 1000/- for carrying the dead body of the deceased to his native place, but he did not know whether this fact was recorded by the police or not. Even on 23-10-1986, they were not provided meals for the night.

Laiq Ram (P.W. 2) states that he was also called for interrogation on 17-10-1986 along with Sukh Dev Singh (P.W. 1) and they were kept in a room in the CBI office continuously up to the early hours of 24-10-1986, and during this period they were subjected to physical torture and were not given meals and it was only after two days of initial detention that they were sent out to take meals. The deceased came on 20-10-1986 along with two ladies and was confined with them in the same room. On 23-10-1986 at about 10 or 10.15 P.M., the accused slapped the deceased. The deceased said that he was not strong enough to bear the torture but instead of listening to the deceased, another slap was given. The deceased again requested that he be spared of the physical torture, but he was given the third slap by the accused as a result of which he fell on the floor and sustained injury on the back side of his head. The accused noticed that something serious had happened and became nervous. Water was brought and the deceased was lifted to enable him to take water but he could not take the water and in the meantime blood came out of his nose and mouth. The accused stated that the deceased should be taken out of the room and sent to hospital. Accordingly, the deceased was brought out and the accused also held him by the shoulders whereas he and Sukh Dev Singh held him from the legs, The gate was got opened from the Chowkidar and the dead body was placed in front of the Railway Board Building. The accused went inside the office and after sometime ambulance came and they took the deceased to the hospital along with a Constable. At the hospital gate, the Driver switched on the inner lights of the vehicle and found that the man was dead and was brought back to the place from where it was lifted. The gate of the office was closed and the accused and the Constables were nowhere available. However, the accused came after two hours and persuaded them to take the dead body of the deceased to his village which they did not agree. When they went to the room after getting the door opened from the Chowkidar, they found that the floor was cleaned. The accused asked them to state to the police that the deceased slipped and sustained the head injury while they were going to some Dhaba to take the meals. This information had been supplied to the S.P. by the accused although Sukh Dev Singh (P.W.I) had stated the actual facts when the telephone was handed over to him on the asking of the S.P., CBI.

During cross-examination, this witness states that they used to go to the nearby Dhaba to take tea and meals whenever the accused would let them go. They did not make any complaint against the accused about their confinement and torture. He states that he had told the police about the offer of money to them for carrying the dead body of the deceased but this version has not been recorded in his examination u/s 161 of the Code of Criminal Procedure. He also admits that several police parties of the State police had come to the area to investigate the case and all those parties interrogated him also but he was neither arrested nor placed under suspension like Sukh Dev Singh (P.W. 1). He also states that in the police building there were three big halls and two small rooms. Lavatory was close-by and they used that lavatory. He also states that sometime they used to be interrogated separately and sometimes collectively.

The third important witness, whose presence has been admitted by Shri Sukh Dev Singh (P.W. 1), is Nek Mohammed (P.W. 4) who is the Lambardar of the area. He has also admitted his presence in the C.B.I, office in connection with the investigation of the case of disappearance of Patwari Dayal Singh and also admits the presence of Sukh Dev Singh (P.W. 1) and the deceased at this place. He was interrogated around 4 or 5 P.M. and thereafter he went to his village. He has denied that the deceased was given beating by the accused in his presence and in the presence of Sukh Dev Singh (P.W. 1) and Laiq Ram (P.W. 2). This witness has been declared hostile by the prosecution and has been subjected to cross-examination. However, he has completely denied having given the kind of statement to the police which has been recorded u/s 161 of the Code of Criminal Procedure.

Shri Harnam Singh (P.W. 7) is the Driver of the ambulance. He states that on the night intervening 23/24 October, 1986, he was instructed by his office to go with the vehicle to the Railway Board Building where some injured person was lying and he was asked to carry the injured to the hospital in the ambulance. He reached the place and saw the man in an injured condition. Three persons lodged the injured in the ambulance and accompanied him to the hospital. At the hospital gate, he asked these persons to take the injured inside the hospital by removing the injured from the vehicle to which they did not agree and asked him to take the injured to the hospital and on his refusal, they asked him to take the injured back to the place from were he was taken. They also stated that the injured was not known to them as they were only passers-by, two of the three persons paid him Rs. 30/- towards the hire charges. Here, they have given a different story. The reason appears to be that they wanted to conceal their identity and future involvement in the case since the deceased had died in their company, otherwise they should have straightaway come forward with the story they are now trying to support.

Head Constable Devi Ram (P.W. 8) was posted M.H.C. in police station, Boileauganj. First Information Report (Ex. PN) was written by him on the receipt of statement (Ex. DA) u/s 154 of the Code of Criminal Procedure. He also states that Inspector Prem Nath had deposited with him a wet pantaloon on 25-10-1986 which he gave back on 26-10-1986 when it dried up. There was a blood stain on the pent near the knee point which was marked by Inspector Prem Nath with pen and put his signatures near the said blood stain. Then he sealed the pant in a parcel vide memo. (Ex. PM) with seal ''B'' which was handed over to Shri Krishan Dutt after use.

Head Constable Kishore Chand (P.W. 14) states that he was Investigating Officer in Police Station Boileauganj in 1986 and on 24-10-1986, the accused rang up police station, Boileauganj, that he had called three persons in connection with the inquiry and that one of them, namely, Siri Ram had died. He went to the spot and there the accused, two constables, Patwari Sukli Dev Singh and Kanungo Laiq Ram were present. The dead body of the deceased was lying near the gate of the Rickshaw shed which is just on the road. He filled the inquest report form (Ex. PH) which is written and signed by him. He searched the dead body of the deceased and got it photographed. On the arrival of the Assistant Sub-Inspector of Police, the dead body was sent to the hospital for postmortem examination. He did not see blood marks anywhere except the gate of the Rickshaw shed where the dead body was lying. He did not see any marks of blood from the Mall Road to the rooms of the CBI office.

Dy. S.P. Prem Nath (P.W. 16) states that on 25-10-1986, he took over the investigation of the case on orders from his superior officers. He partly investigated it and arrested the accused on 25-10-1986 and while in custody, the accused stated that the blood stained papers, carbons, cotton etc. had been thrown by him outside the office through a window and that the blood stained pantaloon had been kept by him in his quarter in a bucket of water and could get those articles recovered. This statement was recorded and signed by him which is Ex. PS. It was also signed by the accused and witnesses. It was as a result of this statement that the accused got recovered from outside the Railway Board Building a paper, carbons and cotton stained with blood. These articles were put into a box and sealed with seal ''H''. Seizure memo, was prepared (Ex. PC) on which signatures of witnesses were obtained. The seal, after use, was given to Shri Sukh Dev Singh (P.W. 1). From inside the office, he took into possession a sample of cotton from a mattress which was sealed in a parcel. The mattress was also taken into possession and sealed in a gunny bag. Seizure memo, was prepared (Ex. PD). Then from the residential house, the accused got recovered his pant which was in a bucket of water. It was taken into possession vide memo. (Ex. PB). Site plan of the recovery of the articles was also prepared which is Ex. PT in addition to the plan of the site of recovery of the pant (Ex. PU). Statements of Sukh Dev Singh, Ram Nath, Parkash Chand, Harnam Singh and Prem Lal were also recorded by him and then the further investigation was handed over to the Station House Officer, Boileauganj. He took over the investigation from Sulekh Chand, ASI, and reached the spot at 12.45 P.M. According to him, Sulekh Chand had also recorded the statements of witnesses before he took over the investigation. He denies that there was something else in addition to the water and the pant in the bucket, meaning thereby that there was no brick under which the pant had been put inside the bucket, as stated by Sukh Dev Singh (P.W. 1). He also states that there were two cots in a room of the CBI office and the mattress was lying on one of those cots only. He denies the suggestion that the accused did not make any statement regarding the recoveries and they were planted on him. He admits that there were no blood marks on the passage that leads to the CBI office nor the same were found in the rooms of the CBI office. He denies the suggestion that signatures of the accused on Ex. PS were obtained by intimidation or deceit.

A.S.I. Sulekh Chand (P.W. 17) remained posted as Investigating Officer, Boileauganj, from May, 1986 to July, 1987. He states that on 24-10-1986 he reached the spot and recorded the statement of Shri Sukh Dev Singh (P.W. 1) u/s 154 of the Code of Criminal Procedure. That statement was sent vide his endorsement (Ex PA) for the registration of a case. He prepared the plan of the Railway Board Building (Ex. PV). He also prepared the site plan (Ex. PW) of the site where the deadbody was lying and vide memo. (Ex. PX) he took into possesion the blood which was lying on the spot and was sealed in a parcel. The deadbody was sent for postmortem examination through Head Constable Kishore Chand with a written request (Ex. PY) under his signatures. He also recorded the statement of Shri Nek Mohammed (Ex. PK) in the same form in which it was given by him. He recorded daily-diary report (Ex. DA). On receiving this report, he had deputed Shri Kishore Chand, Head Constable, to the spot. He reached the site of occurrence at 4.30 P.M. and made casual inquiries from the witnesses. S.P., CBI, had reached the site later on but he did not ask anything from him. He recorded the statements of Shri Sunder Led and Ramesh Chand, Chowkidars, who are the employees of the Central Public Works Department. He was told by Sukh Dev Singh (P.W. 1) and Laiq Ram (P.W. 2) that the accused had cleaned the blood from the floor and that the accused had thrown out the cotton from the window with which the blood had been wiped out.

Dr. D.K. Ghosh (P.W. 3), Department of Forensic Medicines, Indira Gandhi Medical College, Shimla, conducted the postmortem examination in this case on 25-10-1986 at 11.30 A.M. The dead body was sent for the purpose along with the inquest report (Ex. PH) which he perused before conducting the postmortem examination. He found the following injuries on the dead body of the deceased:

There was evidence of bleeding from both the nostrils and from left angle of mouth. The blood having trickled from left angle of mouth towards left ear lobule and also downwards to the chin and upper front of neck up to thyroid cartilage.

There was presence of postmortem graze abrasions over right in fresco popular, left upper scapular (super spinouts area) directed below upwards. Graze abrasions were also present over lower back i.e. over Lumbosacral region in an area of 12 cm x 6 cm.

There was present ante-mortem pressure abrasion along with contusion in the underlying tissues.

There was presence of a healed abrasion in the form of raised dark brown hard scab over front of left ankle joint.

There was presence of a lacerated wound 1.5 cm x0.5 cm bone deep from left side of occipital bone, triangular shaped lesion with matting of scalp hairs all around.

Scalp, skull and vertebrae, mummeries-brain.

After reflection of skin flaps: There was presence of gross contusion of scalp over left occipital region in an area of 10 cm x 5 cm and also over left temporal region in an area of 6 cm X4 cms. There was also present a linear fissured fracture immediately underneath the scalp wound are on the left occipital region.

After removal of the skull cap: There was presence of sub-dural haemorrhage over both cerebral hemispheres in the fronto-parieto-temporal regions more so over frontal region. Sub-arachnoid haemorrhages were also present over both hemispheres over fronto-parieto-temporal regions more so along attachment of flax cerebra. Contusions of varying sizes were also present on the frontal poles on posterior aspect and in the cerebellum, along with multiple hemorrhagic spots in the brain stem. Fissured fracture was also present on the posterior cranial fosse traversing from left towards the medulla-oblongata. A linear fissured fracture was also present on anterior cranial fosse left side as represented in the diagram on the postmortem report.

He also states that the stomach was found distended and on opening, dark-brown-gruel-like material was found with few grains of dal (Dhoi Mungi) with gases of decomposition. No peculiar smell was noted nor there was'' any evidence of congestion. Gases of decomposition only were found in the small intestines. Large intestines contained gases of decomposition and liquid faecal matter. In his opinion, the death occurred as a result of ante-mortem head injury within 36 to 48 hours of the postmortem examination. Finally, he states that the presence of the grains of Dal in the stomach indicated that the deceased must have taken his meals within four hours of the death. The probable time gap between the injuries and the death was between 2 to 4 hours. This is the kind of evidence that has been adduced by the prosecution in this case,

Sukh Dev Singh (P.W. 1) is the Patwari in the area where Laiq Ram (P.W. 2) is the Kanungo. They both belong to the same Department and the investigation related to the disappearance of Patwari Dayal Singh who was also working there in the same area. Both these witnesses had been associated in the investigation since a long time. The only difference has been that Sukh Dev Singh (P.W. 1) appears to be the prime suspect in the case and was arrested and placed under suspension also. This matter was investigated by the State Police for number of months and when it failed to find out the cause of the crime, the investigation was handed over to the Central Bureau of Investigation. It has been admitted by these witnesses that they were interrogated by many police teams in the past. Obviously, they have a grievance against everyone in the investigating agency but it is ''quite serious against the present accused for the reason not only that he investigated the present case but also because he subjected them to harsh treatment. It is quite clear from the manner of their statements, improvements and exaggerations that it is absolutely difficult to depend on what they said in support of the prosecution case. It is also quite clear from their behavior and conduct that they were bent upon deposing against the accused and with that end in view, changed the facts of the case as soon as they found the police protection available to them. Let me briefly analyze and scrutinize some of the fundamental aspects of their statements to discredit them as witnesses and to declare them undependable in the present case.

It has not been stated by anyone, except Sukh Dev Singh (P.W.I), that the accused would stop beating them only when he would get tired otherwise he would continue to beat them and that they were not provided any meals for the first two days nor allowed to take meals that had been brought by them from their homes in their bags and that after two days the Constables on security duty had provided them eatables with a warning not to disclose the fact to anyone and that they were beaten in the presence of the ladies although interrogated separately and that they used to be beaten after questioning separately and whenever they were used to be huddled in one room. The statement of Sukh Dev Singh (P.W. 1) that Nek Mohammed (P.W. 4) was also given beatings, has been denied by Nek Mohammed (P.W. 4). The falsity in this statement is, therefore, apparent. There was no question of beating them after their separate interrogations and more particularly when they were huddled in one room. Moreover, there was no reason nor any occasion for the accused to have lined-up these people on the day of occurrence and although this witness has said that they were beaten but in view of the evidence available on the record of this case, there could be no such beating for want of occasion and in view of this witness''s statement that many were standing while Nek Mohammed (P.W. 4) was occupying sofa along with some other Constables.

These two witnesses have lied not only as to the beating of the deceased but also as to the blood that fell on the floor of the room and then cleaned by the accused. No incident, as alleged, in my opinion, took place as stated by these witnesses. There was no question of falling of blood on the floor and the story set-up by these witnesses is thoroughly false and unacceptable. Head Constable Kishore Chand (P.W. 14) and Dy. S.P. Prem Nath (P.W. 16) have clearly stated that no blood marks were seen in any of the rooms and from the passage from the Mall Road to the rooms in question. Therefore, the evidence as to the falling of the blood on the floor and cleaning thereof by the accused with cotton taken from the mattress is absolutely false and cannot be accepted. If one looks to Ex. P.2/5 to Ex. P.2/8, lot of blood is visible to the naked eyes that is spiltered on the road from the dead body. Had this incident happened in the room, as stated by these witnesses, this much of blood should have been there in the room and it was absolutely impossible for the accused to have cleaned it with small piece of cotton, as stated by these witnesses. Even if it is assumed, it could have certainly left out traces or remnants to enable the Investigating Officer to collect it during the investigation of this case.

The story of the incident having taken place inside the office is ruled out from another angle also. The Railway Board Building is a huge building. It accommodates large number of offices belonging to the Central and the State Governments. It is looked after by the Central Public Works Department and the gates facing the Mall Road and the Dhabas, where the so-called detainees used to take meals, were manned by Chowkidars Ramesh Chand and Sunder Lal. They were material witnesses who have been left out by the prosecution without any sound explanation. They could have thrown sufficient light on this occurrence since it is the prosecution case that the accused had been in his office along with the detainees for late hours and the deceased was taken out by the accused and these witnesses and for that purpose, the gate of the building was got opened from Ramesh Chand, Chowkidar. The gate was opened at subsequent stage also during the night. The incident took place a few yards from the gate and could be visible to Chowkidar Ramesh Chand. He could also have spoken as to the departures and arrivals of the accused on number of occasions as stated by the prosecution witnesses (See: Ex. P 2/6).

There is one more fact to be noticed here. According to the version of these witnesses, the blood was cleaned with cotton which was thrown out through the window. It has not been stated that in addition to the cotton, a paper and carbons were used to clean it but the Investigating Officer recovered all these things saying that he was told by these witnesses that the accused had used them for the purpose of cleaning the floor. Sukh Dev Singh (P.W. 1) has denied that the accused made any disclosure statement which led to the recovery of the pant but the Investigating Officer has recorded the statement of the accused u/s 27 of the Indian Evidence Act and has termed the recovery as a sequel to the statement of the accused. Not only the recovery of pant becomes doubtful but the other recoveries in this case also become undependable in proof of this aspect of the prosecution case. The trial Judge has wrongly attached much significance to the ownership and recovery of pant (Ex. P. 9) by observing that the pant (Ex. P. 9) was owned by the accused and was recovered at his instance. If the prosecution evidence is analyzed properly and correctly, this aspect is not of much significance for the reason that in case there had been any such blood stain on the pant in question, it could have been detected either by the accused with self or by Constables with him between the time he had been out from the office till 1 A.M. when he came back. This means that the police has done some padding on this aspect of the matter. This conclusion is further strengthened by the fact that Sukh Dev Singh (P.W. 1) has denied that the accused ever made any statement u/s 27 of the Indian Evidence Act. He has also denied that the pant was sealed in his presence. Further, there is evidence pointing out that after the packet containing the pant was sealed, the seal was handed over to Sukh Dev Singh (P.W. 1).

Alternatively, the blood stain could appear on the pant during all the time the accused was dealing with the body of the deceased and his denial in his examination u/s 313 of the Code of Criminal Procedure does not mean that inference of guilt is to be drawn against him. The prosecution cannot take any advantage in this regard. It has to prove not only the ownership of the pant but also the fact that the accused was using it during the commission of the crime and was stained with blood during that very time. In addition to this, it has also to prove that it was recovered in pursuance of the statement of the accused recorded u/s 27 of the Indian Evidence Act and then taken into possession and sealed in the presence of witnesses and the seal duly handed over to a person from whom there is no possibility of the seal being taken back and used for the purpose of tampering of the sealed parcel. Here, not only the recovery aspect is doubtful but the evidence subsequent to that is also of completely doubtful nature when we see, in addition to what has been discussed above, the fact that the parcel was opened, wet pant dried and again sealed at a subsequent stage.

The version that the accused offered these witnesses Rs. 1000/- for carrying the dead body of the deceased to his village, appears to be a clear improvement in their version since this does not find mention either in Ex. PA or in Ex. PE and Ex. PF, recorded by the police. Similarly, the version that the accused spoke of his S.P. at Chandigarh about this incident in a different way than him, is clearly false for the reason that the S.P., CBI, was not at Chandigarh during this time. As a matter of fact, the S.P., CBI, was at Shimla as is clear from the statement of Shri Sulekh Chand (P.W. 17) who states that the S.P., CBI, had reached the spot later on from whom he did not ask anything, meaning thereby that the S.P., CBI, had reached the spot soon after the reaching of the A.S.I. Sulekh Chand who reached the spot at 4.30 A.M. The S.P., CBI, was also a material witness in the case who has been left out and from his non-inclusion, it is quite clear that the story being given by these witnesses is false and would not have been supported by the S.P., CBI. Further, why these witnesses failed to go to the police station to lodge the report, when asked by the accused to do so and when they could have stated to the police about the real state of the case and there was no difficulty in doing so especially when they had once informed the S.P., CBI, on telephone, is not understood.

Again, these witnesses supported the information contained in Ex. PB given in their presence. Inquest proceedings were initiated and they also put their signatures to it without any protest although they could have given the same kind of statement which they allegedly gave to the SP, CBI, on telephone.

In the inquest proceedings (Ex. PH), the cause of injuries has been stated to be by fall and not as a result of fall due to slaps given by the accused inside the CBI office. The inquest report is also an important document in a criminal case since it is, as a matter of fact, the first step relating to the cause of death. It is important to quote para 35 from the Supreme Court decision reported in AIR 1978 SC 1558 {Rameshwar Dayal and Ors. etc. v. State of U. P.) wherein the Supreme Court said as under:

Reliance was placed by the learned Counsel for the Appellants on this decision in support of his argument that the statements made in the inquest report were inadmissible in evidence being hit by Section 162 Code of Criminal Procedure In the first place the statement made by the Investigating Officer in Ex, Ka.-lO is not a statement made by any witness before the police during investigation but it is a record of what the Investigating Officer himself observed and found. Such an evidence is the direct or the primary evidence in the case and is in the eye of law the best evidence. Unless the record is proved to be suspect and unreliable, perfunctory or dishonest, there is no reason to disbelieve such a statement in the inquest report.

In addition to the non-examination or non-inclusion of Ramesh Chand, Chowkidar, and S.P., CBI, the prosecution has also failed to examine other material witnesses like Chowkidar Sunder Lal, Harbans Lal, Ram Nath and the owner of the Dhaba where they might have taken the meals since, according to the doctor (P.W. 2), the deceased had taken meals. The only inference that can be drawn from this kind of failure on the part of the prosecution is that in case these witnesses had been produced in this case, the story of the prosecution would not have been supported by them. The present story of the prosecution is not the true account of the incident which has been concealed by it and it sought to prove the present case by inclusion of witnesses like Sukh Dev Singh (P.W. 1), Laiq Ram (P.W. 2) and Nek Mohammed (P.W. 4) although out of them also Nek Mohammed (P.W. 4) clearly turned hostile and did not support the prosecution case in its entirety. Since the main witnesses of the prosecution, namely, Sukh Dev Singh (P.W. 1) and Laiq Ram (P.W. 2) were thoroughly hostile to the accused, it became easy for the prosecution to bank entirely on their support.

Turning to the explanation of the accused, 1 see great substance and reasonableness in the same. It may be that the accused had been quite harsh during interrogation, but he had nothing to do with the death of the deceased who fell outside the premises and the incident took place in the absence of the accused. His explanation that the deceased had gone away with Sukh Dev Singh (P.W. 1) and Laiq Ram (P.W. 2) for meals and had a fall is quite acceptable like his further explanation that he came to the scene of occurrence on receiving information from one of the Constables. Similarly, it is quite believable that he asked Sukh Dev Singh (P.W. 1) and Laiq Ram (P.W. 2) to report the matter to the police since the deceased had died while he was in their company. Further, his explanation as to the recoveries also appears to be correct if we look to the manner of these recoveries and the weak and the shaky kind of evidence that has appeared on the record of this case touching this aspect of the matter.

The result of the aforesaid examination of the case is that the trial Judge has not dealt with the matter quite comprehensively and analytically with the result that wrong conclusions have been drawn for coming to the conclusion that the crime has been committed by the accused. As a matter of fact, the aforesaid examination of the matter clearly establishes that the accused has nothing to do with the incident in question and he has been proceeded against quite unjustifiably. It appears that he has placed in such a situation that witnesses like Sukh Dev Singh (P.W. 1) and Laiq Ram (P.W. 2) made full use of the situation and made every possible effort to depose against him. As already observed, the prosecution also made selective use of witnesses for the investigation and examination in this case leaving out really important witnesses. The result, therefore, is that there is merit in Criminal Appeal No. 233 of 1988 (Kishori Lal Raina v. State of H.P.) and the same is allowed. The conviction and sentence imposed upon the Appellant is set-aside. He is acquitted of the charge and his bail bond and surety bond are discharged.

In view of the acquittal of the accused as aforesaid, Criminal Appeal No. 321 of 1988 (State of H.P. v. Kishori Lal Raina) for the enhancement of the sentence is dismissed.