09 April 1996
Supreme Court


Case number: Appeal Criminal 185 of 1988






DATE OF JUDGMENT:       09/04/1996


CITATION:  JT 1996 (4)    53        1996 SCALE  (3)346



JUDGMENT:                             WITH               CRlMINAL APPEAL  NO.186 OF 1988 State of Himachal Pradesh V Rakesh Malik & Others                             WITH               CRIMINAL APPEAL NO. 187 OF 1988 Rakesh Malik V State of Himachal Pradesh                           W I T H             CIVIL APPEAL NOS. 6303-6308 OF 1994 Shri Rakesh Singha V. Shri Vikram Anand & Ors.                           W I T H                CIVIL APPEAL NO. 7232 OF 1994 Shri Harbhajan Singh Bhajji V. Shri Rakesh Singha & Ors. Criminal Appeal Nos.185 to 187 of 1988:      The  above  three  Criminal  Appeals  arise  out  of  a judgment and  order in  Criminal Appeal No.42 of 1979 on the file of the High Court of Himachal Pradesh dated 25.9.1979.      The appellants  in Criminal  Appeal Nos, 185 and 187 of 1988  were  convicted  by  the  learned  trial  Judge  under Sections 148,  452, 427 and 325 read with Section 149 I.P.C. However, the learned Sessions Judge dealt with the convicted accused under Section 360 of the Criminal Procedure Code and instead of  sentencing them  to any punishment directed them to be  released on  their entering into a bond in the sum of rupees ten thousand with one surety for the like sum in each case undertaking  to appear and receive sentence when called upon during  a period  of 2  years from the date of judgment and in  the meantime to keep peace and be of good behaviour.



The State  aggrieved by the judgment of the learned Sessions Judge preferred  appeal to  the High  Court. On  appeal, the High Court  enhanced the  sentence of the accused/appellants to rigorous  imprisonment for  a period  of five years under Section 304  Part (II)  read with Section 149 I.P.C. It also awarded sentence  of R.I.  for a  period of  three years for offences under  Sections 325, 452 read with Section 149 IPC. Still further  they were  sentenced to  undergo R.I. for two years under  Section 148  IPC. All  the above sentences were directed to  run concurrently. The State still aggrieved has filed  Criminal   Appeal  No.186  of  1988  seeking  further enhancement of  sentence as  well as  for conviction of some other accused persons.      Briefly stated, the facts are as under ;      On May 10, 1978 one Harnam Dass (P.W. 7) celebrated his daughter’s marriage  at his  house (Alfin  Lodge) in  Simla. ’veering registration  No. HPN  102 belonging to Harnam Dass was parked on the road just ahead Of his house. P.W.3 Shakti Ram was  the driver who found two boys (university students) pushing the  jeep and  third one  sitting  on  the  steering trying to  start the vehicle. When the driver questioned the boys, they  started abusing  him and  threatened to assault. The driver  went down  towards Alfin Lodge and returned with Rakesh (P.W.4) who is the son of Harnam Dass. On questioning the boys  for interfering  with the jeep, he was also abused and when Rakesh shouted for help, the boys left the jeep and went away.  While going  they shouted  that they  would soon teach them  a lesson. Rakesh informed about this incident to P.W.2 Dharam Pal who was then working as Additional District & Sessions  Judge, Kangra  who brought  the  matter  to  the notice of  P.W. 7  Harnam Dass  and also  rang up the Police Station for  Police protection. The Station House Officer by name Pritam  Singh (P.W.35)  with police party reached Alfin Lodge in  a Police  Van and police party was also there till about 1.30 A.M. on 11.5.1978 when the marriage party and the bride departed.  Thereafter the  police party left the place leaving one  Head Constable and one Constable at Alfin Lodge on the  suggestion of  Dharam Pal. About 8 or 9 persons from Bride’s side  had yet  to take their means which was ordered to be  served. At  that time Dharam Pal saw about 20-25 boys rushing towards  the main  gate of Alfin Lodge. The distance between the main gate of the Alfin Lodge and the place where Dharam Pal  and others were sitting and waiting for meals to be served  was about  50 ft.  Dharam Pal  on seeing the boys proceeded towards  them with  the  intention to persuade and stop them  from entering the Shamiana. He even disclosed his identity thinking  that they  night show  some respect.  The boys were  armed with  various types of weapons like. hockey sticks, iron  rods, iron  chains, dandas, empty bottles etc. Naresh Kumar,  P.W. 9  who is  the bride’s  brother followed Dharam Pal  and some  other men  folk also  came there.  The appellant in  Criminal Appeal  No.187 of 1988 questioned the men folk  present then  as to  who had removed his boys from the jeep. While they were talking, the appellant in Criminal Appeal No.187  of 1988 gave a hockey blow aiming at the head of Naresh  Kumar which  the  latter  received  on  his  left forearm resulting in a fracture of his ulna bone. Then it is stated the  said appellant  instigated  the  other  boys  to attack  and   kill  one  and  all  persons  is  resulted  in indiscriminate beating  which lasted  for about  10 minutes. Seeing the  situation going  out of control, Dharam Pal once again rang  up the police station and apprised the police of the happening  there  and  requested  for  immediate  police assistance. On  coming to  know of these the boys retreated. While going  back they  threw stones on the building thereby



breaking some  window panes. They also broke the flood light which had been installed on the katcha approach road. In the incident, Dharam  Pal, Naresh,  Vidyasagar, Rakesh,  Romesh, Omesh and  the deceased  Suresh  had  all  received  various injuries at the hands of the boys. About 20 s minutes later. the S.H.O.  Pritam  Singh  accompanied  by  a  police  force reached the  place and  immediately sent the injured persons except Dharam Pal and Omesh to Ripon Hospital, Shimla in the police van  for their  medical examination and treatment. He immediately  inspected   the  spot   and  started  recording statements of  P.W.2 Dharam  Pal under  Section 154  Cr.P.C. After recording  the statements,  the same  were sent to the Police Station  for registration  of the case. Initially the case was  registered under  Sections 147, 148, 149, 452, 427 and 323  IPC. Later  on as one of the injured namely Suresh, succumbed to  the injuries.  charges under Sections 325, 307 and 302 IPC were also added. The S.H.O. during investigation took into  possession a  hockey stick,  two broken pieces of cricket wicket  , a  wrist watch  which had  fallen from the wrist of  Dharam Pal, a broken piece of a bottle. a piece of wood, some  stones and  some broken  window Panes  from  the spot. He also took into possession the shirt of Ramesh which was besmeared with blood.      Pursuant to  this, the Police could round up only 14 of the boys  who were  involved in  the incident.  Some of them were arrested  on 12.5.1978 and others were arrested on 15th May, 22nd  May and  29th May,  1978.  While  in  the  police custody,  Hukam   Chand,  Chuni   Lal  and  Chain  Ram  made statements under Section 27 of the Evidence Act in pursuance of which the Police recovered an iron chain, a broken leg of a chair and an iron rod said to have been used in the course of the  incident. On  being sent  for chemical analysis they were found  stained with  human blood.  Stomach contents  of deceased Suresh along with portions of liver, one kidney and spleen as  well as samples of blood and urine were also sent for chemical  analysis and  as per  the information  of  the chemical examination,  blood alcohol  concentration  to  the extent of  86 mg.  per 100  ml was  detected and presence of alcohol was  confirmed by  the stomach  contents  recovered, kidney, spleen and urine of the deceased. The 14 boys except Kahan Singh  Dagar who  were arrested  were challaned to the Court of the Chief Judicial Magistrate, Shimla who committed all of them to face trial in the Sessions Court for offences under Section  147, 148,  149, 452, 427, 323, 325, 353, 307, 302 and 201 IPC.      The accused  Kahan Singh  Dogra  was  discharged  under section 227 Cr.P.C.      All the accused were sent to the Sessions Court to face the trial as they pleaded not guilty. The common plea of the accused persons  was that  they were not present at the time of alleged  occurrence and they have been falsely implicated in this case. The learned Sessions Judge after going through the oral  evidence  of  PWs  and  the  documentary  evidence produced by  the prosecution  and also the statements of the accused under  section 313  Cr.P.C. found  that seven out of thirteen who  faced the  trial. namely,  Mehar Singh, Hardev Singh, Arun  Mahajan, Pratap  Singh, Jagrup  Singh Chaudhry, Rajender Chauhan  and Prem Nath had not committed any of the offences charged against them and consequently acquitted all these seven  persons under  section 232  Cr.P.C. The balance six of  the accused were called upon to enter their defence. Though the  witnesses listed  by the  accused were summoned, the  accused  persons  did  not  avail  the  opportunity  of examining them.      After hearing  the arguments  of the  counsel  for  the



prosecution and  the defence  the learned  Sessions Judge by Order dated  4.10.78 convicted  the appellant in Crl. Appeal No. 185  & 187  of 1988  (appellants in  Crl. A.  No. 185  & 197/88) only  for offences  punishable under  sections  148, 452, 427  and 325  read with  149 IPC.  However as mentioned above, they  were released on their entering bonds for a sum of Rs.  10,000/- with  one surety  for the like sum and also undertakings during  a period  of two years from the date of the judgment  and keep  peace in the meantime and be of good behaviour.      On appeal  by the  State of  Himachal Pradesh, the High Court for  reasons stated in the judgment under appeal while confirming the  convictions of the appellants in Crl. A. No. 185 &  187 of  1988 sentenced them by imposing various terms of imprisonment  to be  run he  gave only  the surname.  The trial court  acquitted four  other co-accused  as it was not prepared to accept the evidence of PW 9 with regard to those four accused persons’ identification. Likewise, applying the same reasoning,  the contention  is, that  the courts should have rejected  the evidence  of  SW  9  in  respect  of  the appellant’s identification  as well.  In any case, according to the learned counsel, that there was no intention to cause grievous injury  much less  one of death is obvious from the fact of  the weapon  used in  the attack. The High Court was not  justified,   according  to   the  learned  counsel,  in converting the  offence from  the one  under Section  352 to another under  Section 304 Part II on the facts of this case and, therefore,  the enhancement  of sentence  and that  too after eight years of the occurrence and the appellant having served the  punishment imposed  by the  trial court  is  not justified.      On these  grounds, the  learned counsel argued that the appeal should be allowed.      The learned  counsel  for  the  appellant  in  Crl.  A. No.187/88 contended that the appellant’s name did not find a place in the First Information Report and the evidence, read as a  whole, does  not establish  the case to be against the appellant and  that the  identity was not established beyond doubt. He particularly . our attention to the fact that PW2, Dharam Pal  did not  testify?  the  crucial  fact  that  the deceased received  any injury at all. According to him, this vital factor escaped attention of the trial court as well as the  High  Court.  He  built  up  his  argument  further  by contending that having regard to the post-mortem report, the deceased could  have died  on account of fall as a result of excessive  dratting   and  that  is  why  PW-2  did  not  to testify/to the  alleged injury  received by  the deceased at the hands  of the  accused. It  was  also  argued  that  the accused has  since well  settled in  life and if he is asked now to undergo the remaining part of imprisonment, that will spoil his  career particularly  when during  all these years the appellant has not given any room for a complaint.      So far  as the  appeal filed  by the State is concerned namely Crl  A. No.  186/88, no  one was present to argue the appeal. However,  we have  considered the  grounds raised in the Special  leave petition and it will be dealt with at the appropriate place.      We have  considered  the  submissions  of  the  learned counsel appearing  for the appellant in Criminal Appeal Nos. 185/88  and   187/88.  After  carefully  going  through  the judgments of  the Sessions  Court and the High Court, we are unable to pursued ourselves to accept the contentions raised by the learned counsel for the appellants in Criminal Appeal Nos. 185/88  and 187/88.  Not only  for the  reason that the findings are  concurrent but  also for  the reason  that the



findings of  the courts  are well-considered, well supported and  well-founded  we  find  that  there  is  no  scope  for interference  either   with  the   conviction  or  with  the enhancement of sentence awarded by the High Court.      We have  seen the  root cause  for the incident was the meddling with  jeep by  the  college  students.  Though  the prosecution presented  the case  as if  nothing more than an altercation took place in connection with the jeep incident, the learned Sessions Judge on the basis of evidence of PW 10 was right in finding that the accused Kedar Singh and Rakesh Singha (appellant  in Crl.  A. No.  185/88) were  beaten and humiliated by  certain persons  belonging to Alfin Lodge. He was also  right in  observing  that  as  a  result  of  such manhandling of  the above  said accused,  the students later assembled and  decided to  take revenge. Otherwise there was no good reason for P.W.2 Dharampal to seek police protection during the  marriage ceremony  that was to take place in the night of  10th May,  1978. Proceeding  further, we find that after the  main incident at the Alfin Lodge and on the basis of FIR  given by  P.W.2 Dharampal, 14 boys were arrested out of which  one Kahan Singh Dogra was discharged under section 227 of  Cr.PC. Later  7 were  acquitted  under  section  232 Cr.P.C. and  only six  were called  upon to  enter on  their defence by  the learned  Sessions Judge. Even among the Six, after the  trial, the  learned Sessions Judge convicted only the two accused appellants before us and acquitted the rest.      As   stated    above,   on    appeal   both    by   the accused/appellants and  the  State,  the  High  Court  while confirming  the  conviction  of  appellants  before  us  and acquittal of  four others,  enhanced the sentence imposed on the accused appellants. This only shows that the courts have carefully weighed  the evidence  and have  not accepted  the same in its entirety as presented by the prosecution.      So far  as the  accused appellants  are concerned,  the main arguments, as we have seen earlier, are regarding their identity, involvement  in the  main incident that took place at Alfin  Lodge and  the credibility of evidence tendered by PW 9.  Other  contention  seriously  pressed  was  that  the appellant in  Criminal Appeal  No.187 of 1988 contended that the name  of the  appellant did not appear in the F.I.R. and the inclusion  at the subsequent stage was an after-thought. Another  argument   advanced  was   that  both  the  accused appellants have well-settled in life and at this distance of time, this  Court will  take note  of that  fact and if this court  confirms   the  sentence   imposed  on   the  accused appellants that  will spoil their career. So far as the main incident that  toot place  at the  Alfin Lodge is concerned, that  has   been  well-established   beyond  doubt   by  the prosecution  witnesses  2,  4,  5,  7,  8,  9  and  20  and, therefore, that was not seriously challenged.      Coming now  to the identity of the appellants, the High Court rightly  accepted the  evidence of  PW 9  and found as follows:      "The  learned  Sessions  Judge  has      given formidable reasons in support      of his  findings that  there can be      hardly   any    doubt   about   the      involvement  of  Rakesh  Malik  and      Rekesh  Singha.  We  do  not  think      there is  any good reason to take a      different view  of this point. PW 9      Naresh  Kumar,  Advocate,  had  met      both of  these accused  earlier. It      was he who had kept one of his hand      on Rakesh  Malik’s  shoulder at the



    place of  the main  occurrence  and      had addressed  him; "Malik, kia bat      hai?".   Accused    Rakesh   Malik,      however directed  a hockey stick on      Naresh  Kumar’s   head  which   the      latter warded off by his left fore-      arm resulting  in fracture of unla-      bone, which  fact is  borne out  by      the medical  evidence.  That  PW  9      Naresh  Kumar   had  so   addressed      accused  Rakes   Malik  before  the      members of  the  unlawful  assembly      started  inflicting   injuries   to      whosoever  came  in  their  way  is      borne out  from  the  testimony  of      other eyewitnesses  as well.  PW  4      Rakesh Sood,  PW 5  Ramesh Sood and      PW 20  Vidya Sagar,  Advocte,  have      identified  Rakesh   Malik  in  the      Court. Even  if much  weight is not      attached  to  such  identification,      there  is   no  reason  at  all  to      disbelieve the  testimony of  PW  9      Naresh  Kumar   who  has  come  out      totally  unscathed  in  his  cross-      examination   as    far   as    the      identification of  Rakesh Malik and      Rakesh Singha  is concerned.  PW 11      Chet  Singh  has  deposed  that  he      alongwith other University students      after  hearing  that  some  of  the      students had  been beaten  and were      lying by  the side of the road, had      proceeded to  the place  where jeep      and been  parked.  He  saw  accused      Kedar Singh and Rakesh Singha Iying      on the  roadside at  a distance  of      about 10 paces from the dhaba being      run by  PW 10  Raj  Kumar.  PW  Raj      Kumar  had   then  told  them  that      Rakesh Singha and Kedar Singh had a      quarrel with  some members  of  the      marriage party.  This part  of  his      testimony has  not been  challenged      in  the   cross-examination   which      establishes  the   involvement   of      these  two   persons  in  the  jeep      incident.  PW   10  Raj  Kumar  was      declared hostile  and his  demeanor      in the witness box was noted by the      learned   Sessions    Judge    with      observations that  he was trying to      act in  an over-clever  manner  and      was forestalling  the questions put      to him and was volunteering replies      even  before   the  questions  were      complete.   Even    this    witness      identified  accused   Kedar   Singh      being involved in the jeep incident      though  he  denied  having  made  a      statement before  the  police  that      Kedar  Singh  had  told  him  about      Rakesh  Singha   having  misbehaved      with the driver under the influence      of liquor . Thus, i t stands proved



    beyond   reasonable    doubt   that      accused  Rakesh   Malik  and  Kedar      Singh were  two persons  out of the      three who  had tried  to drive away      the   jeep.    As    regards    the      identication of the culprits at the      time of  main occurrence which took      place at  about 1  a.m., it is writ      large on  the  statements  of  eye-      witnesses in this case that none of      them  had  a  desire  to  implicate      anyone    falsely     Cumulatively,      therefore,   we   are   in   entire      agreement  it   with  the   learned      Sessions Judge  about the  identity      of accused  Rakesh Malik and Rakesh      Singha    having     been     fully      established."      After going  through the  evidence, we  do not find any good ground to take a different view. Regarding the argument that the name of the appellant in Criminal Appeal No. 187/88 did not  find a  place in FIR given by PW 2 Dharampal, we do not find  that there  is any  lacunae in  that. PW 20 in his deposition has stated as follows:      "There was  no visible  injury mark      on the  person of  Suresh  when  he      accompanied  us  to  the  Hospital.      After our  medical  examination  in      the    Hospital,    Suresh    first      complained that  two of  fingers of      his hand  had become  numb and then      he complained  that he  was feeling      as if  his  right  side  was  being      paralyzed. The  doctor then started      examining Suresh  and also inquired      from him  it he  had  received  any      injury. Suresh  could not  reply by      mouth but  he pointed  out  towards      his head  by his  hands. The doctor      wanted Suresh  to sign  some papers      but Suresh  was unable  to sign his      name. It  was at about 5.45 or 6 AM      when  Suresh   complained  of   his      troubles.   Soonafter   he   became      unconscious.  He   was   therefore,      detained in  the Hospital  and  the      rest of  us returned to Alfin Lodge      in  the  same  Van.  About  fifteen      minutes   later   we   received   a      telephonic   message    that    the      condition of  Suresh had grown very      serious and he was being removed to      Snowdon  Hospital.  On  receipt  of      that information some of us went to      Snowdon Hospital.  Suresh could not      recover and  expired in  the  early      hours of 12th May."      As a  matter of fact, it appears from the evidence that the deceased  Suresh was  in fact  helping the other injured persons at  the Alfin  Lodge in  taking them to hospital and that was the reason for PW 2 not mentioning Suresh as one of the injured  in the  FIR. Therefore  it was  quite in accord with the  evidence of  P.W.20. Another  argument advanced by the learned counsel for the appellant in Criminal Appeal No. 187/88 was  that having  regard to the post-mortem report of



the deceased  Suresh, it  was suggested  that  the  injuries could have  been caused on account of the fall due to effect of alcohol.  This argument  is stated to be rejected only as the evidence  shows that  the  deceased  was  helping  other injured persons  to be  taken to  hospital and  only at  the hospital  he   suddenly  developed   numbness   and   became unconscious.  The   last  argument  concerning  the  accused appellants that  during the  pendency  of  the  appeal  they having well-settled  in life  should not  be asked  to go to prison by confirming the sentence is not acceptable to us on the facts  of this  case. We  have  seen  that  the  accused appellant along  with number  of others  armed  with  hockey sticks, iron  chains etc.  attacked  the  aged,  defenceless persons  indiscriminately   including  women   and  children completely turning  the happy  marriage occasion  to one  of mourning. On the facts, we are satisfied that the High Court was justified in enhancing the sentence and there is no case for interference on any account.      Now  coming  to  the  appeal  preferred  by  the  State (Criminal Appeal No. 186/88) we do not find any merit in the appeal. The  High Court was right in altering the conviction from one under S. 302 to S. 304 Part II having regard to the to act  that the death occurred after 24 hours of inflicting injury and  also the  type of  weapon used  or  causing  the injury. We  do not  think that there is any case for further enhancing  the  sentence.  For  the  foregoing  reasons,  we dismiss all the three appeals. Civil Appeal Nos. 6303-05 of 1994 & 7232 of 1994      All these  appeals arise  out of a common judgement and order of  the High  Court of  Himachal Pradesh  in  Election Petition  Nos.1/94,   4/94  and   5/94  dated  13.9.94.  The appellant in   C.A.  No. 6303-05/94  was elected  to the 8th Assembly Constituency,  Himachal Pradesh  in  the  elections held on  9.11.93. It may be mentioned that the appellant who is the  appellant in  Criminal Appeal  No.185/88. filed  his nomination paper  during the  pendency of the said appeal in this  Court  after  obtaining  suspension  of  the  sentence imposed on  him  by  the  High  Court.  His  nomination  was objected to by the election petitioners. On the basis of the order of suspension of sentence by this Court his nomination was accepted  and  he  was  declared  elected  on  29.11.93. Challenging his election three election petitions were filed in the  Himachal Pradesh High Court. The High Court took the view that  suspension of  sentence  Will  not  automatically result in  suspension conviction.  therefore, the acceptance of the  nomination was  illegal.  The  High  Court  said  as follows :      "The result of the above discussion      is that  the election of Sh. Rakesh      Singha is void as the result of his      election   has    been   materially      affected by the improper acceptance      of   his    nomination.    He    is      disqualified to  be chosen  to fill      the seat of 8-Shimla Assembly.      Constitutency having been convicted      and sentenced to imprisonment for a      period of  more than  two years  by      judgment  dated   25.9.87  in  Crl.      Appeal No.  42 of  1979  passed  by      this Court. The order dated 10.1.89      and 2.2.90  passed by  the  Supreme      Court, releasing  Sh. Rakesh Singha      on   bail.    resulting   in    the      suspension of sentence imposed upon



    him,    do     not    arrest    the      disqualification   which   was   in      operation on  the date  of scrutiny      of his  nomination under Section 36      of the Act and also continues to be      in operation  when  these  election      petitions are being decided."      Challenging the  above decision  of the High Court. the appellant has  filed  Civil  Appeal  No.  6303-05/94.  Civil Appeal No.  7232/94 is  preferred by the appellant who was a candidate defeated  in the  election and  being aggrieved in not getting  & declaration  as elected  in the  place of the first respondent  in his  Appeal (Rakesh Singha) even though he was found to have secured next highest votes.      While these  appeals were  heard  along  with  Criminal Appeal Nos.  185. 186  and 187  of 1988. the counsel on both sides agreed  that in the event of this Court dismissing the Criminal Appeals,  all the  election appeals will also stand dismissed and no separate argument was addressed. As we have dismissed the  criminal appeals,  these civil  appeals  also stand dismissed.  However. there  will be  no  order  as  to costs.