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PETITIONER: RAM SINGH & ORS.

       Vs.

RESPONDENT: STATE OF HIMACHAL PRADESH

DATE OF JUDGMENT:       24/02/1997

BENCH: M.K. MUAKHERJEE, S.P. KURDUKAR

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T S.P. KURDUKAR, J.      These criminal  appeal by Special Leave have been filed by  the  eleven  appellants  challenging  the  legality  and correctness of  the judgment  and order dated March 11, 1988 passed by  the High  Court of  Himachal  Pradesh  at  Shimla affirming  their   conviction  and  sentence  under  Section 201/120-B of  the Indian  Penal code  passed by the Sessions Judge, Mandi. 2.   Alongwith the  appellants, four  others, namely,  Mohd. Sardar, Lal  Singh, Jiwan  Lal and  Netar Mani  ( all police officials )  were put  up for  trial for offences punishable under Section  302/342/506/201/120-B of the India Penal code and on  their  convictions  for  the  above  offences,  were sentenced to suffer life imprisonment under Section 302/120- B IPC and for various other terms of sentences in respect of other offences.  The Appellants  however were arraigned only for the  offence punishable  under Sections 201/120-B of the Indian Panel  Code. these  appeals are, However. Confined to the conviction and sentences of the appellants under Section 201/120-B of  the Indian Penal Code for it is common premise that the  confections of  the four convicts were affirmed by the High  Court and  their Special  Leave Petition  to  this Court was dismissed. 3.   Briefly Stated the prosecution case is as under:-      One Kishan  chand @  Krishnoo (PW  10) of Village Dadah Lodged a  report at Balh police station stating that on July 7 ,  1983, a  theft of  some currency  notes and  three gold ornaments had  taken place  in his  house. This  report  was lodged  on  July  8,  1983.  After  registering  the  crime, Krishnoo went to his village. He suspected Dila Ram (PW 16). On 10th  July, 1983, Lal singh, police constable accompanied by some  other constables  came to the house of Krishnoo who pointed out deceased). Both of them were interrogated by Lal Singh. In  the Meantime.  ASI Narbir  Singh came  there  and continued further interrogation. The police party thereafter took Lal  Singh and  Sheru to the police station balh on the evening of  July 10,  1983. During the investigation, couple of other  suspects were  also interrogated  but without  any success. One  Basanta Ram was also taken  the police station

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on 9th  July, 1983  and was detained there. Therefore, Longu Ram, father  of Basanta Ram, approached Sh Parkash Chand (PW 1) in  the morning  of July  11, 1983 t use his good offices with SI  Mohd. Sardar  for  Release  of  his  son.  On  such Intervention, Si  Mohd. Sardar Agreed to release Basanta and Dila Ram after the swelling on their feet subsided. SI Mohd. Sardar asked  Parkash Chand  (PW 1)  to wait  in the  police station as he would be taken as a witness to the recovery of stolen articles  pursuant to  the statement under Section 27 of the Evidence Act made by Sheru. They went towards ’nalla’ at village  Dadah  alongwith  Sheru  but  nothing  could  be recovered. At  the instance  of  SI  Mohd.  Sardar,  At  the relevant time,  a police van bearing No. 265 was called from police headquarters  at Mandi  for carrying  out the  excise raids as  it was  reported that  an illicit distillation was going on  at various  places. Sheru  who  was  then  in  the custody of  SI Mohd.  Sardar  Made  further  statement  that stolen articles  were kept  in Dadah  ’nalla’ and  he  would recover the  same from  there. The police party then came to Dadah  ’nalla’   in  a   track  but  nothing  was  recovered therefrom. It  is the  prosecution case that SI Mohd. Sardar and other police constables used the third degree methods on Sheru causing  several injuries  to him. On 11th July, 1983, 1983, police  party headed by Mohd. Sardar went to the house of Sheru as he had made a statement that ornaments were kept at his  house. After reaching the house of Sheru, his mother Reshmo  (PW   14),  wife  Bhuvneshwari  (PW  11)  and  other relatives came  out of  the house  and permitted to take the search but  nothing was recovered. It is then alleged by the prosecution that  the police party thereafter gave merciless beating to  Sheru. He  was thereafter gave merciless beating to Sheru.  He was thereafter taken to the police station and detained during  the night.  On July  12, 1983, Sheru during further interrogation  made a statement that he had kept the stolen articles  in village Shegli. In pursuance of the said statement, Mohd.  Sardar alongwith  the place  party boarded the mini  bus (police  van) and went towards village Shegli. Nothing was recovered from the said village. Sheru was again given severe  beatings by  Mohd.  Sardar  and  other  police constables and  it appears that during further interrogation Sheru used  to make  statements as  regards stolen  articles having been concealed at various places but nothing could be recovered.  The   last  leg   of  the  investigation  was  a confessional statement which is alleged to have been made by Sheru that  he had  kept the  stolen property under a banana tree at  village Biharta.  SI  Mohd.  Sardar  alongwith  the police party  and other  police constables who had come from Mandi proceeded towards village Biharta in a police van. The police van  then was  parked on the road and SI Mohd. Sardar and three  other police  constables  went  on  foot  towards village Biharta.  Nothing was recovered from that place. Due to  serve   beating  by  the  police  officials  during  his detention  in  the  police  custody,  the  health  of  Sheru deteriorated and  , therefore,  they decided  to take him to the civil  dispensary,  Sheru  Succumbed  to  his  injuries. Realising the  consequences of  death  of  Sheru,  SI  Mohd. Sardar and other police constables got down from the vehicle and held  a discussion to decide the mode of disposal of the dead body.  Initially they though of taking the dead body of Sheru to the forest areas and burn it there. Accordingly, SI mohd. Sardar  asked Jivan Lal, police constable and Krishnoo to go  to Chail Chowk  in police van and get two empty gunny bags, one  tin a  rope. They returned with these articles at dusk time.  They all  boarded the  mini bus (police van) and asked the  driver to  take it to Sunder Nagar dispensary for

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post mortem  examination. The  police van  stopped a  little away from  the petrol  pump and thereafter Deepak Raj, Netar Mani, police  constables and  Krishnoo went  with the tin to Chail Chowk  and then  brought the   diesel  in the  tin and petrol in  one bottle  from the  said petrol  pump. SI Mohd. Sardar asked  the driver  to take  the vehicle  to Nilaspur. They thereafter  Moved on  Jukhala-Brampukhar road and after covering a distance of 3/4 Kms., the police van was stopped. The dead  body was taken out of the van at some distance and after sprinkling  diesel over  the dead  body, it was set on fire. It  was then realised that some residential house were in the  nearby locality  and the  flames would attract their attention. Immediately  they extinguished  the fire, put the dead body  into the  gunny bag  and tied  it with a rope and brought back  and kept  in the  police van.  They thereafter proceeded towards  sleeper bridge  and threw  the dead  body into the  Sutlej river. They took every care to see that the dead body disappeared in the flow of the water of the river. On 13th July , 1983 at about 4.00 a.m., they all returned to the police  station, Balh.  It is alleged by the prosecution that Mohd.  Sardar warned  Parkash Chand  (PW 1). Bihari Lal (PW 2)  and Krishnoo (PW 10) not to disclose the incident to anybody. If  any query  is made  by any  of the relatives of Sheru, he  be told  that he  had absconded  from the  police custody. Parkash  Chand, Bihari Lal and Krishnoo However did not accept  the advice of Mohd. Sardar. They went to one Jai Singh,  a  member  of  Panchayat  and  told  him  about  the incident. They  then contacted  Tulsi Ram  (PW 13),  the  Up Pradhan who advised them to go and inform about the incident to Sh.  B.C. Negi  (PW 20), Superintendent of Police, Mandi. Accordingly, Superintendent  of Police,  Mandi was contacted and he  was told  about the  incident. S.P.  Mandi alongwith other police  officials went  to  police  station  Balh  and lodged the  report at  the instance  of Parkash Chand. After completing the  investigation, a  charge sheet  came  to  be filed against  the four  co-convicts and  the appellants for the offences mentioned hereinabove. 4.   The appellants  denied the  allegations levelled by the prosecution against  them. According  to them,  they did not know anything  now and  who killed  Sheru and thereafter how the dead  body was  made to disappear. They are innocent and they be acquitted. 5.   As stated  earlier, the limited question that falls for our consideration  in this  appeal  is  as  to  whether  the complicity of  the appellants  for the  offences  punishable under Section  201/120-B of the Indian Penal Code was proved beyond reasonable  doubts. To  Prove the  complicity of  the appellants, the  prosecution mainly relied upon the evidence of three eye witnesses, namely, Parkash Chand (PW 1), Bihari Lal (PW  2) and  Krishnoo (PW 10). It is not in dispute that the corpse of Sheru Could not be traced. 6.   M/s Rajendra  Singh and  Ranjit Kumar,  Learned Counsel appearing in  support of this appeal urged that the evidence of Parkash  Chand (PW 1), Bihari Lal (PW 2) and Krishnoo (PW 10) in  the facts and circumstances of the case could not be the basis  of conviction  of the  appellants  as  they  were accomplices in  the present  crime. According to the learned counsel, if  their evidence is excluded out o consideration, then  there   is  no  material  on  record  to  sustain  the conviction of the appellants. The conduct of these witnesses was totally opposed to the ordinary nature of Human conduct. Their evidence  does  not  show  as  to  how  any  of  these appellants was  responsible for causing the disappearance of the of  the  dead  body  .  The  appellants  were  gainfully employed as government  servants and infect they had nothing

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to do with the investigation of the theft case. They were on they did not participate in any of the criminal acts alleged against the  four co-convicts,  namely,  Mohd.  Sardar,  Lal Singh, Jivan Lal and Netar Mani. Assuming that they were the inmates of  the police  van that  by itself  would not prove their complicity in the present crime. 7.   Mr. T.A.  Khan, Learned  Counsel appearing on behalf of the State supported the impugned judgment. 8.   We have  carefully perused  the judgment  of the  court below, the oral evidence of Parkash Chand (PW 1), Bihari Lal (PW 2)  and Krishnoo  (PW 10)  and other materials on record and we are satisfied that the impugned judgment suffers from no infirmity. 9.   The contention  raised on  behalf of  the appellants is that the  evidence of Parkash Chand, Bihari Lal and Krishnoo should be  rejected on the ground that they were accomplices and there  is no  corroboration to  their evidence  from the materials  on   record.  It  is  difficult  to  brand  these witnesses as  accomplices  because  they  were  required  to accompany the  investigating party  in respect  of  a  theft case. it  is  true  that  these  three  witnesses  were  all alongwith the  investigating party  till the  dead body  was thrown into  the Sutlej river. That by itself could not make them accomplice  in the present crime. The evidence of these three witnesses  indicates that  they were  uneasy when they were allowed  to go  from the  police station  on 18th July, 1983 and  as soon  as they were free from the control of the investigation   party,    they   imeediately    rushed    to Superintendent of  Police, Mandi  to  lodge  the  complaint. Parkash Chand  (PW 1)  and Bihari Lal ( PW 2) have testified that  they   without  any   loss  of   time  contacted   the Superintendent of  Police, Mandi  and narrated the incident. They have  given all details how the injuries were caused to Sheru and on his death how the dead body came to be disposed of. The  learned courts  below accepted  their  evidence  as trustworthy and  credible and  we see  no reason  to take  a different view  in that  behalf. As  regards the  charge  of conspiracy,  Krishnoo   (PW  10)   has  testified  that  the appellants and  the other four co-convicts were talking with each other  at a  short distance and during said discussion, they decided to cause the disappearance of the dead body n a clandestine manner.  In pursuance  of this  conspiracy, they initially  tried  to  burn  the  dead  body  and  thereafter extinguished the  fire, put the dead body into the gunny bag and after  carrying it  in the  police van  near the sleeper bridge, they threw it in the Sutlej river. Parkash Chand (PW 1), Bihari Lal (PW 2) also testified to this effect. In this view of  the matter.  in our  opinion, the  prosecution  has established  the   conspiracy  that   was  hatched   by  the appellants and  the other  four co-convicts  with regard  to causing disappearance of the dead body of Sheru. 10.  After going  through the  judgments of the courts below and the  other evidence on record, we are satisfied that the conviction  recorded   by  the   courts  below  against  the appellants under  Section 201/120-B of the Indian Penal Code does not  suffer from  any infirmity.  We accordingly affirm the same. 11.  During the  course of  hearing, we  were  told  by  the learned advocate  for the  appellants they  appellant No.  3 died on  15th February,  1989. The  appeal to  this  extent, therefore, stands abated. 12.  It was  then contended on behalf of the appellants that each one  of them  had substantially undergone a substantive sentence. They are the government employees, Pursuant to the order passed by this Court, they have been released on bail.

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In view  of these  circumstances, it was contended that ends of justice  would be  met if the appellants are sentenced to the period  which they have already undergone. After hearing counsel for  the parties as regards the quantum of sentence, we are  of the  opinion that ends of justice would be met if the substantive  sentence  of  each  of  the  accused  under Section 201/120-B  IPC is  reduced to  the period which they had already under gone. We accordingly do so. 13.  For the  foregoing conclusions,  the conviction  of the appellants under  Section 201/120-B of the Indian Penal Code is confirmed, but, however, the sentence awarded to them for the said offence is reduced to the period already undergone. the  sentence  of  fine  against  each  of  the  accused  is confirmed. The bailbonds of the accused to stands cancelled. The appeals are thus disposed of.