State of Himachal Pradesh vs Vijay Kumar and Sushil Kumar

Deepak Gupta, J.—This appeal by the State is directed against the judgment dated 2.4.2004 delivered by the learned Additional Sessions Judge (I), Kangra at Dharamshala in Sessions Case No. 1-P/2001, whereby he acquitted the accused persons of having committed offences punishable under Sections 302 and 307 read with Section 34 IPC. The prosecution story, in brief, is that on 3.9.2000, at about 1 a.m., PW1, Vikram Singh, lodged a report, Ext. PW1/A at Police Post Panchrukhi. In this report, it was mentioned that PW5, Surinder Kumar had informed PW1, Vikram Singh, that Lakhbir Singh alias Lucky (brother-in-law, being wife''s brother of Vikram Singh) had been murdered with a ''khukhari'' by Rana alias Sushil Kumar and his maternal uncle, Vijay Kumar and dead body of Lakhbir Singh was lying at a place, known as ''darati''.

On receipt of this information, PW 9, ASI Tilak Raj, along with other police officials immediately went to the spot and recorded the statement of PW-5, Surinder Kumar u/s 154 Cr.P.C.. According to the statement of PW-5, Surinder Kumar, on 2.9.2000, at about 9.00 p.m. he along with Lakhbir Singh alias Lukcy (deceased) and PW-6, Sanjiv Kumar alias Kaka were going towards their houses. When they reached near ''darati'', accused No. 2, Sushil Kumar alias Rana, who runs a hardware shop, along with his maternal uncle, accused No. 1, Vijay Kumar, came from behind on a scooter. They first shook hands with them and talked to each other. In the meantime, Rana started arguing with Lucky and attacked Lucky with a ''khukhari''. Lucky started crying and PW-5 and PW-6 started rescuing Lucky, on which Rana gave a blow on his left shoulder and second blow on his left hand. Lucky fell down on the ground and, thereafter, both, PW-5 and PW-6, ran away to their houses. PW-5 informed his mother, Saroj Kumari, about the incident.

Thereafter, the police carried out further investigation and on this basis, the accused persons were charged with having committed the murder of the deceased and also murderously attacking PW-5, with an intention of killing, with conspiracy. After trial, the learned trial Court acquitted the accused persons because PW-5 and PW-6 did not support the prosecution case.

The star witnesses of the prosecution, PW-5 and PW-6 have turned hostile. PW-5 was seriously injured and had received grievous injuries in the incident. His version is that they were attacked by some persons, who gave ''khukhri'' blow to them. He further stated that because it was dark, he could not identify the assailants. Similar is the version of PW-6.

The two main witnesses of the prosecution have turned hostile. The entire prosecution case rests on the testimony of PW-1, Vikram Singh, who was allegedly informed by PW-5, first of all how the incident had happened. He has supported the prosecution case and according to him, at night, PW-5 along with his mother had come to his house and informed him that his brother-in-law, Lucky, had been attacked by Rana and his maternal uncle, Vijay Kumar, with a ''khukhri'' and they had murdered him. Further, according to this witness, he then went to the police station to lodge the report, which is Ext. PW1/A.

A perusal of Ext. PW-1/A, which is the report lodged by Vikram Singh, in no uncertain terms, discloses the commission of murder and murderous assault. The question that arises is why was this not treated to be the first information report. This was the first information given to the police that Lucky had been murdered and a murderous attack had taken place on PW-5. In Ext. PW1/A, the name of accused Rana is also mentioned. It is also mentioned that his maternal uncle, Vijay Kumar was also involved in the commission of offence. Therefore, the names of both the accused were mentioned and a cognizable offence was disclosed, and this statement should have been treated to be an F.I.R.. The police, however, did not treat it to be an FIR and recorded the statement of PW5, purportedly u/s 154 Cr.P.C. and the statement is Ext. PW5/A. We are of the view that this statement could not be treated to be a statement u/s 154 Cr.P.C., not being the first information and it can, at best, be treated like a statement u/s 161 Cr.P.C., which is not required to be signed by the witness. In any event, Surinder Kumar has not supported the prosecution case and both he and PW6, for reasons best known to them, have resiled from their earlier statements made to the police and have refused to identify the assailants. It is not necessary to discuss other evidence because both these witnesses supported the prosecution in so far as the attack is concerned. The only issue is whether the accused persons were properly identified or not.

Though, PW5 and PW-6 have been cross-examined at length and PW-5 also admitted making the statement to the police and his signatures on Ext. PW5/A, their testimony in the Court cannot be discarded. Smt. Saroj Kumar, mother of PW-5 has not been examined and the only question is whether PW-1 should be believed or PW-5 and PW-6 should be believed.

The fact that PW-5 and PW-6 have resiled from their earlier statements goes against the prosecution. Suspicion can never take the place of proof in criminal case. PW-1 is not an eye witness and his statement is hearsay, based on what he was allegedly told by PW-5, who denies having made such statement or having told PW-1 that he had seen the accused persons murdering the deceased. In these circumstances, the view taken by the learned trial court is a reasonable view and cannot be said to be a perverse view. Therefore, we find no ground to interfere in the judgment of acquittal passed by the learned trial court and the appeal is accordingly dismissed. Bail bonds are discharged.