Piar Singh Rana, J.@mdashBoth appeals are filed against the same judgment and sentence passed by learned Additional Sessions Judge Fast Track Court Una (H.P.) in Sessions Trial No. 19/04 RBT 37/05/04 titled State of H.P. v. Amrish Rana and others decided on 30.10.2007. Both appeals are consolidated and disposed of by same judgment in order to avoid the repetition because both appeals have arisen out of same judgment and sentence passed by learned trial Court.
BRIEF FACTS OF THE PROSECUTION CASE:
2. Brief facts of the case as alleged by the prosecution are that deceased Ashok Kumar was working as driver in Chemical factory at Jhalera. It is alleged by prosecution that on dated 24.8.2002 the deceased was seen by his brother Prem Kumar in the company of Satta @ Satvir, Pinku @ Rajesh Kumar and Neeraj @ Lambar in the Esteem car bearing registration No. DL-3CB-6939 near old hospital chowk at Una (H.P.) at 6.45 PM and thereafter deceased Ashok Kumar did not come to his home for 2/3 days nor he appeared in Court in triple murder case which was pending against him and was fixed for hearing on dated 26.8.2002. It is alleged by prosecution that on dated 26.8.2002 it was told by Naveen Kumar to P.W. 1 Prem Kumar that Pinku, Neeraj and Vinay Kumar took deceased Ashok Kumar to Sub jail Una (H.P.). It is alleged by prosecution that co-accused Amrish Rana asked Naveen Kumar and Vinay Kumar to collect money from Mehatpur and when Naveen Kumar and Vinay Kumar came back to Sub jail Una (H.P.) they found that nobody was present there and thereafter Naveen left Vinay Kumar in Sub jail Una (H.P.). It is alleged by prosecution that thereafter dead body of deceased Ashok Kumar was found in river near village Panjawar and same was identified by his brother P.W. 1 Prem Kumar on dated 2.9.2002 in presence of father of deceased and thereafter police official took into possession the dead body and prepared inquest papers. It is alleged by prosecution that co-accused Amrish Rana and others were arrested in triple murder case at the instance of deceased and due to this enmity deceased was killed by accused persons namely Amrish Rana and others in furtherance of criminal conspiracy. It is further alleged by prosecution that on dated 24.8.2002 when P.W. 2 was present in his shop at about 6.30 PM an esteem car bearing registration No. DL-3CB-6939 being driven by Satnam came to his shop and Vinay Kumar, Vijay Kumar and Neeraj were sitting in said car and Vinay Kumar inquired from P.W. 2 about deceased Ashok Kumar and P.W. 2 told him that he was not knowing about deceased Ashok Kumar but in meantime deceased Ashok Kumar arrived there and above said persons started talking with deceased Ashok Kumar. It is alleged by prosecution that deceased Ashok Kumar was asked to come to Sub jail Una (H.P.) and thereafter deceased along with above named occupants of car came towards Sub jail Una (H.P.). It is further alleged by prosecution that at about 8.45 PM P.W. 2 Naveen Kumar came to Sub jail Una (H.P.) on his motor cycle and found that Esteem car was lying parked outside Sub jail Una (H.P.) and Ashok Kumar, Vinay Kumar, Satnam, Vijay Kumar, Neeraj, Rajesh @ Pinku, Rajesh @ Seth and Rajinder @ Jindu were sitting in the guard room of Sub jail Una (H.P.) and were talking to each other. It is alleged by prosecution that when deceased Ashok Kumar was sitting outside the guard room then co-accused Amrish Rana and Vinay Kumar came outside the guard room and told Vinay Kumar to collect money from Ravinder @ Babbu from Mehatpur and thereafter he and Vinay Kumar went to Mehatpur on motor cycle to collect money from said Ravinder Kumar who told them that he could not arrange money and assured that money would be arranged within 2/3 days and thereafter they came back from Mehatpur at about 8.15 PM and when they reached back to Sub jail none of persons was there and jail officials told that other persons have left Sub jail Una (H.P.). It is alleged by prosecution that thereafter dead body of deceased Ashok Kumar was found in river where several persons were assembled and police officials also arrived at the spot and dead body took into possession. It is alleged by prosecution that photographs of spot were also obtained and dead body was identified by Prem Kumar and Chandan Singh. It is alleged by prosecution that photocopy of duty register w.e.f. 24.8.2002 to 25.8.2002 and photocopy of meeting register w.e.f. 23.8.2002 to 26.8.2002 and photocopy of roznamacha and photocopy of register No. 16 Ext. P1 were took into possession by police officials vide recovery memo Ext. P.W. 1/A. It is alleged by prosecution that P.W. 16 namely Mela Ram home guard official was told by Bheem warder of Sub jail Una (H.P.) that co-accused Amrish Rana and proclaimed offender Gurjant Singh wanted to meet call of nature and thereafter P.W. 16 Mela Ram home guard official posted in Sub jail Una (H.P.) informed co-accused Tara Chand who was shift warder at that time and thereafter co-accused Tara Chand opened the lock of main gate and allowed co-accused Amrish Rana and Proclaimed offender Gurjant Singh to meet call of nature outside the jail premises because toilet inside the jail premises was already chocked. It is alleged by prosecution that both co-accused Amrish Rana and Proclaimed offender Gurjant Singh were outside the jail premises and 8-10 persons came from outside to meet them and discussed something in open compound with them. It is alleged by prosecution that thereafter co-accused Amrish Rana and Proclaimed offender Gurjant Singh sat in home guard room and thereafter co-accused Amrish Rana and proclaimed offender Gurjant Singh took one person to the meeting room of sub jail Una (H.P.). It is alleged by prosecution that there was no light in meeting room of sub jail Una (H.P.) and thereafter after some time co-accused Amrish Rana and proclaimed offender Gurjant Singh came out from the meeting room of sub jail Una (H.P.) while third person remained inside meeting room of sub jail Una (H.P.). It is alleged by prosecution that thereafter co-accused Amrish Rana and proclaimed offender Gurjant Singh told 8-10 persons to meet them next day. It is alleged by prosecution that thereafter co-accused Tara Chand took Amrish Rana and Proclaimed offender Gurjant inside judicial lock up. It is alleged by prosecution that thereafter P.W. 16 Mela Ram and Tara Chand went to meeting room of sub jail Una (H.P.) and searched the meeting room of sub jail Una (H.P.) with torch. It is alleged by prosecution that P.W. 16 Mela Ram home guard posted in sub jail Una (H.P.) requested co-accused Tara Chand shift warder to hand over him the torch but co-accused Tara Chand refused to do so and thereafter P.W. 16 Mela Ram home guard official lit a match stick and noticed that wooden box was lying in meeting room of sub jail Una (H.P.) and he partially opened wooden box and on opening wooden box he saw dead body of deceased Ashok Kumar inside the wooden box kept inside meeting room of sub jail Una (H.P.). It is alleged by prosecution that thereafter P.W. 16 Mela Ram home guard official informed co-accused Tara Chand who told him not to disclose the incident to anyone otherwise he would be involved in criminal case. It is also alleged by prosecution that thereafter again P.W. 16 Mela Ram on dated 2.9.2002 identified the dead body in zonal hospital Una (H.P.) and came to know that dead body was of deceased Ashok Kumar. It is alleged by prosecution that thereafter statement of P.W. 16 Mela Ram home guard official was recorded before Judicial Magistrate under Section 164 Cr.P.C. it is alleged by prosecution that dead body was the same dead body which P.W. 16 Mela Ram home guard saw in meeting room of sub jail Una (H.P.). in wooden box. It is alleged by prosecution that co-accused Amrish Rana and proclaimed offender Gurjant have also threatened P.W. 16 Mela Ram home guard official that they would finish the family of P.W. 16 Mela Ram in case he would depose against them. It is also alleged by prosecution that post mortem of deceased Ashok Kumar was conducted by P.W. 20 Dr. Suresh Sankhayan and post mortem report is Ext. PT. It is alleged by prosecution that as per post mortem report cause of death of deceased Ashok Kumar was asphyxia as a result of throttling. It is further alleged by prosecution that thereafter scooter which was used for carrying the dead body to a river was took into possession. It is alleged by prosecution that spot map Ext. P.W. 24/D was prepared and lock Ext. P25 and pair of keys Ext. P26 also took into possession. It is alleged by prosecution that disclosure statement was also recorded and scooter No. HP-22-8137 also took into possession. It is alleged by prosecution that wooden box Ext. P10 was also recovered from sub jail Una (H.P.) vide seizure memo Ext. PC. It is also alleged by prosecution that co-accused Amrish Rana and proclaimed offender Gurjant Singh kept the dead body of deceased Ashok Kumar in a box Ext. P10 in meeting room of Sub jail Una (H.P.) and thereafter in the night of 24.8.2002 co-accused Amrish Rana and proclaimed offender Gurjant Singh in connivance with co-accused Tara Chand warder of Sub jail Una (H.P.) shifted the dead body to back side of IPH office after wrapping the same in blanket and thereafter placed the dead body in gunny bag. It is alleged by prosecution that thereafter in the night of 25.8.2002 co-accused Amrish Rana and proclaimed offender Gurjant in connivance with co-accused Tara Chand shift warder transported the dead body of deceased outside the meeting room of Sub jail Una (H.P.) to a river situated in Khad village on scooter No. HP-22-8137. It is alleged by prosecution that spot map of sub jail Una (H.P.) Ext. P.W. 26/A was prepared and spot map of recovery where dead body was kept Ext. P.W. 26/B was also prepared. It is alleged by prosecution that spot map Ext. P.W. 26/D was also prepared where spade was used for burying the dead body. It is alleged by prosecution that site plan Ext. P.W. 26/E was also prepared where dead body was buried. It is alleged by prosecution that documents Ext. P1 to Ext. P8 were took into possession vide seizure memo Ext. PA and photographs of window through which co-accused Amrish Rana and proclaimed offender Gurjant escaped also obtained. It is alleged by prosecution that statement of Mela Ram home guard official under Section 164 Cr.P.C. was also recorded before Additional Chief Judicial Magistrate Una (H.P.). It is alleged by prosecution that reports of FSL Ext. P.W. 26/F and Ext. P.W. 26/G were also obtained. It is alleged by prosecution that deceased Ashok Kumar and co-accused Amrish Rana and proclaimed offender Gurjant were accused in triple murder case which was pending before competent Court of law. After investigation of case criminal case was filed in competent Court of law.
3. Learned Sessions Judge Una (H.P.) framed the charge against co-accused namely Amrish Rana under Sections 120-B, 302 and 201 IPC and charged other co-accused Tara Chand under Sections 120-B, 302 read with Section 120-B, 201, 202, 218 and 222 of Indian Penal Code. Learned trial Court charged other co-accused namely Bhim Singh, Sunil Kumar and Sandeep Kumar under section 223 IPC on dated 14.9.2004. Learned trial Court declared Gurjant Singh as proclaimed offender and he was separately tried. Accused persons did not plead guilty and claimed trial.
4. The prosecution and accused examined following witnesses in support of its case:--
4.1 Prosecution also produced following piece of documentary evidence in support of its case:--
5. Statements of accused under Section 313 Cr.P.C. were recorded. Appellant Tara Chand has stated that he is innocent and has been falsely implicated in this case and appellant Amrish Rana has stated that false case planted against him and he is innocent. He has further stated that Una (H.P.) police was against him and they wanted to falsely implicate him in some serious case. He has stated that deceased Ashok Kumar was co-accused with him in triple murder case and on dated 24.8.2002 deceased Ashok Kumar never came to meet him in sub jail Una (H.P.) nor any other person namely Satnam Singh, Vijay Kumar, Vinay Kumar, Neeraj, Sandeep Kumar, Rajinder Kumar, Rajesh Kumar, Rajinder Kumar alias Jindu came along with deceased Ashok Kumar in sub jail Una (H.P.). He has further stated that above named persons were arrested by police but neither they have been cited as witnesses nor they told single word against him. He has stated that despite the fact that they remained in police custody and thereafter in judicial custody Inspector Harnam Singh without producing them before Judicial Magistrate got them discharged of his own. He has stated that Naveen Kumar and Mela Ram witnesses have falsely deposed in Court. Accused also produced two witnesses in defence. Learned trial Court convicted co-accused Amrish Rana under Section 302 IPC read with Section 120-B IPC and acquitted co-accused Amrish Rana for offence punishable under Section 201 IPC. Learned trial Court convicted co-accused Tara Chand under Section 202 IPC and acquitted co-accused Tara Chand qua offence punishable under Section 120-B, 302, 201, 218 and 222 IPC. Learned trial Court acquitted co-accused Bhim Singh, Sandeep Kumar and Sunil Kumar under Section 223 IPC. After hearing the convicted persons upon quantum of sentence learned trial Court sentenced co-accused Amrish Rana for life imprisonment and fine to the tune of Rs. 10,000/- (Rupees ten thousand only) for offence punishable under Section 302 IPC read with Section 120-B IPC. Learned trial Court directed that in default of payment of fine convicted Amrish Rana will further undergo simple imprisonment for six months. Learned trial Court sentenced co-accused Tara Chand to simple imprisonment for six months and fine to the tune of Rs. 1000/- (Rupees one thousand only) under Section 202 IPC. Learned trial Court further directed that in default of payment of fine by co-accused Tara Chand he would undergo simple imprisonment for one month.
6. Feeling aggrieved against the judgment and sentence passed by learned trial Court both convicted persons Amrish Rana and Tara Chand filed present appeals. We have heard learned Advocates appearing on behalf of the appellants and learned Additional Advocate General appearing on behalf of the State and also perused the entire record carefully.
7. Question that arises for determination before us in both appeals is whether learned trial Court did not properly appreciate oral as well as documentary evidence placed on record and whether learned trial Court had committed miscarriage of justice by convicting both the appellants.
8. ORAL EVIDENCE ADDUCED BY PROSECUTION and ACCUSED:
8.1. P.W. 1 Prem Kumar has stated that deceased Ashok Kumar was his real brother who was working as driver in Chemical factory at Jhalehra. He has stated that on dated 24.8.2002 he saw his brother in the company of Satto @ Satvir, Pinku @ Rajesh Kumar, Neeraj @ Lamber in Esteem car bearing No. DL-3CB-6939 near old hospital chowk Una (H.P.) at 6.45 PM. He has stated that his deceased brother did not come home for 2/3 days and he also did not appear in triple murder case which was listed for hearing on dated 26.8.2002 in which his deceased brother was co-accused with other accused persons. He has stated that on dated 26.8.2002 he was told by Naveen Kumar who was co-accused in that case that Pinku @ Rajesh Kumar, Neeraj @ Lambar, Ashok Kumar, Vinay Kumar took his deceased brother to Sub jail Una (H.P.). He has stated that Naveen Kumar also told him that co-accused Amrish Rana asked him and Vinay Kumar to collect money from Mehatpur. He has stated that when Naveen Kumar came back to sub jail Una (H.P.) with Vinay Kumar they found that nobody was present in sub jail Una (H.P.). He has stated that thereafter Naveen told that he left Vinay in sub jail Una (H.P.) and Naveen himself came back. He has stated that thereafter dead body of his deceased brother was found in river nearby Panjawar. He has stated that he identified the dead body of Ashok Kumar on dated 2.5.2002. He has stated that his father was also present at that time. He has stated that police took into possession the dead body of his deceased brother and prepared inquest report. He has stated that in fact deceased got arrested co-accused namely Amrish Rana and proclaimed offender Gurjant in triple murder case and co-accused Amrish Rana and proclaimed offender Gujrant Singh have enmity towards his deceased brother and due to enmity they killed the deceased in sub jail Una (H.P.). He has admitted that his deceased brother was co-accused in triple murder case titled State v. Amrish Rana and others. He has stated that police officials also took photographs of dead body. He has stated that dead body was lying straight at spot when photographs were taken.
8.2 P.W. 2 Naveen Kumar has stated that he is running a medical store near bus stand Una (H.P.) and deceased Ashok Kumar was known to him. He has stated that he was co-accused in triple murder case titled State v. Amrish Rana and others and there were fourteen accused in the said triple murder case and deceased was also one of co-accused. He has stated that on dated 24.8.2002 he was at his medical shop at about 6.30 PM when esteem car bearing No. DL-3CB-6939 came at his shop which was driven by Satnam and Vinay Kumar, Vijay Kumar and Neeraj were sitting in the said car. He has stated that Vinay Kumar inquired from him about deceased Ashok Kumar and he told that he did not know about deceased Ashok Kumar. He has stated that in the meantime deceased Ashok Kumar arrived there and then they talked with deceased Ashok Kumar and thereafter deceased Ashok Kumar was asked to come to Sub jail Una (H.P.) and thereafter deceased Ashok Kumar along with Satnam, Vinay Kumar, Vijay Kumar and Neeraj went in car towards Sub jail Una (H.P.). He has stated that thereafter at about 6.45 PM he came on his motor cycle to Sub jail Una (H.P.) and esteem car was parked outside the Sub jail Una (H.P.) and deceased Ashok Kumar, Vinay Kumar, Satnam, Vijay Kumar and Neeraj, Rajesh @ Pinku, Rajesh @ Seth and Rajinder @ Jindu were sitting in the guard room of Sub jail Una (H.P.) and were talking with each other. He has stated that deceased Ashok Kumar was standing outside the guard room and in the meantime co-accused Amrish Rana and Vinay Kumar came outside the guard room and told Vinay to collect money from Davinder @ Babbu from Mehatpur. He has further stated that he along with Vinay Kumar went on motor cycle to Mehatpur to collect money and Devinder at Mehatpur told them that he could not arrange money and told that amount would be arranged within 2/3 days. He has stated that thereafter they came back from Mehatpur at about 8.15 PM and when they reached back in Sub jail Una (H.P.) none of above said persons were there and they were informed that above said persons have left the Sub jail complex Una (H.P.). He has stated that Vinay Kumar requested the jail authorities that he should be permitted to talk to co-accused Amrish Rana just from the gate of Sub jail. He has stated that he did not notice deceased Ashok Kumar there and he came back to his shop whereas Vinay Kumar remained outside the Sub jail premises Una (H.P.).
8.3 P.W. 3 Varinderjit Singh has stated that about 1 1/2 years back during rainy season a dead body was lying in village river and several persons have assembled there. He has stated that police also arrived at the spot and dead body was took into possession by the police officials. He has stated that photographs were not taken in his presence. He has further stated that when he saw the dead body he informed the police. He has stated that dead body was lying on the side of road and body came to the side of road by flowing from the water in river.
8.4 P.W. 4 Parbhat Chand has stated that he is posted as Assistant Superintendent Sub jail Una (H.P.) since June 2002 and brought the summoned record. He has stated that during investigation he produced photocopy of duty register from dated 24.8.2002 to 25.8.2002 and photocopy of meeting register w.e.f. 23.8.2002 to 26.8.2002, photocopy of roznamcha and photocopy of register No. 16 regarding entries of persons who came in Sub jail Una (H.P.) and regarding entries of persons who came outside Sub jail premises Una (H.P.) and same were took into possession vide recovery memo Ext. PA. He has stated that photocopies of meeting register are Ext. P1 and Ext. P2 and photocopies of duty register are Ext. P3 to Ext. P6, photocopy of extract of register No. 16 is Ext. P7 and photocopy of roznamcha is Ext. P8. He has stated that on dated 24.8.2002 Rikhi Ram was officiating in his place as Assistant Superintendent Jail. He has stated that Mela Ram was on duty between main gate and lockup gate on dated 24.8.2002. He has stated that distance between meeting room and lock up gate is 10 metres. He has stated that as per jail manual keys of lock up are remained with Assistant Superintendent Jail. He has stated that Jail Superintendent is required to count heads before putting the lock and is required to keep the keys with him.
8.5 P.W. 5 Dina Nath has stated that about two years back during rainy season he was called by officials of jail for carrying out welding work in Sub jail Una (H.P.) and he carried out the welding work in main gate and in a grill inside Sub jail Una (H.P.). He has stated that he had not done welding of the strip of iron which was already cut. He has denied suggestion that person could pass through the hole in case strip was not welded by him. He has denied suggestion that he has deposed falsely in order to save the accused. He has denied suggestion that accused approached him on a number of times to depose in his favour.
8.6 P.W. 6 Kapil Dogra has stated that he is posted as warder in Sub jail Una (H.P.) since May 2002 and on dated 9.9.2002 he was asked by Assistant Superintendent Rikhi Ram to bring some welder in Sub jail Una (H.P.) for welding the gate. He has stated that thereafter he brought a local welder and said welder proceeded towards the gate of Sub jail Una (H.P.) for conducting welding work. He has stated that thereafter he resumed his duty in office and did not notice as to whether the said welder performed the welding work or not. He has stated that he was not asked by Rikhi Ram officiating Superintendent to bring welder for the purpose of welding of iron strip of window of bathroom. The witness was declared hostile. He has denied suggestion that Rikhi Ram officiating Superintendent told him that iron rod of window of bathroom was cut and same was to be welded. He has denied suggestion that welding of iron strip of window of bathroom was conducted in his presence. He has stated that there is a window in bathroom facing the building of District Consumer Court Una (H.P.). He has stated that he has not noticed that iron rod of window of bathroom was broken in such a manner that person could escape through the same. He has denied suggestion that he is deposing falsely in order to save the accused.
8.7 P.W. 7 Suresh Nand has stated that he was joined by police in the investigation of the case in the year 2002 and during investigation Ajay Sharma produced scooter bearing No. HP-22-8137 along with documents and key. He has stated that scooter and key were took into possession vide memo Ext. PB which bears his signatures. He has stated that during investigation police also took into possession one wooden box from Sub jail Una (H.P.) and he has further stated that hook of wooden box was not fixed with the box and lock was attached. He has stated that said box was took into possession by police vide memo Ext. PO which bears his signatures. He has stated that lock Ext. P9 and box Ext. P10 are the same. He has stated that recovery memos were prepared by police in police station.
8.8 P.W. 8 Sat Parkash has stated that about two years back nobody demanded from him the kassi (Instrument for removing sand and mud) on the pretext that their tractor was stuck in the mud and same was required for the purpose of removal of sand and mud. He has denied suggestion that about two years back during rainy season two persons came to his house on the scooter and demanded kassi so as to remove mud and sand from river where their tractor was already stuck in the mud.
8.9 P.W. 9 Subhash Chand has stated that during the year 2002 he was posted in Sub jail Una (H.P.) as warder. He has stated that he used to sleep in the barracks of Sub jail Una (H.P.) after duty hours. He has stated that he was having one wooden box Ext. P10 which he used to keep in meeting room of Sub jail Una (H.P.) and there used to be a cot in the said meeting room. He has stated that meeting room was meant for meeting of visitors with inmates and officials of jail also used the said room for sleeping purpose. He has stated that there is also kitchen room in Sub jail Una and said room was not being used exclusively by co-accused Amrish Rana and proclaimed offender Gurjant Singh. The witness was declared hostile. He has stated that he has not kept any blanket and pair of shoes in box Ext. P10. He has stated that he was on leave w.e.f. 24.8.2002 to 27.8.2002. He has denied suggestion that he had kept blanket and shoes in box Ext. P10 when he went on leave. He has stated that lock of wooden box could be locked and opened by pushing the lid. He has denied suggestion that blanket was missing from box. He has stated that in fact no blanket was kept by him in box. He has denied suggestion that wooden box was washed and was wet and lock was uprooted. He has denied suggestion that when he inquired about wetting of box it was told by co-accused Amrish Rana and proclaimed offender Gurjant that vegetables had fallen in box and they washed the same. He has denied suggestion that co-accused Amrish Rana and proclaimed offender Gurjant told that they had handed over the blanket to somebody and they would give the new blanket to him. He has denied suggestion that on inquiry it came to his knowledge that co-accused Amrish Rana and proclaimed offender Gurjant had used the said box for keeping the dead body of deceased Ashok Kumar. He has denied suggestion that iron rod of window of bathroom facing the building of District Consumer Court was broken and same was later on welded. He has stated that welding work was done on main gate of Sub jail Una (H.P.). He has denied suggestion that he is deposing falsely in order to save the jail officials who are accused in the case. He has stated that Safai Karamchari used to clean the bathroom and meeting room daily in Sub jail Una (H.P.).
8.10 P.W. 10 Avtar Singh has stated that he was joined by police in investigation of case and was took by brother-in-law of deceased Ashok Kumar to police station where he signed some papers at the instance of police officials. He has stated that accused had not made any disclosure statement in his presence. He has denied suggestion that accused persons have given disclosure statement that dead body of deceased Ashok Kumar was wrapped in blanket and thereafter kept in wooden box. He has denied suggestion that accused persons have also given disclosure statement that they kept the dead body behind the IPH building between the coolers at night. He has denied suggestion that accused persons have given the statement that after taking out the same from box the dead body was placed in gunny bag. He has denied suggestion that accused persons have given the disclosure statement that on dated 25.8.2002 the dead body was carried on the scooter bearing No. HP-22-8137. He has denied suggestion that accused persons have given disclosure statement that scooter was driven by co-accused Amrish Rana and proclaimed offender Gurjant was holding the dead body as pillion rider. He has denied suggestion that accused have also given disclosure statement that kassi (Instrument for removing sand and mud) was brought from house of Sat Parkash of village Panjawar and thereafter dead body of Ashok Kumar was dumped below the sand. He has denied suggestion that accused persons have also given disclosure statement that blanket, gunny bag along with kassi were brought back by both accused and kassi was thrown in the bridge of village Khad. He has denied suggestion that accused have also given disclosure statement that blanket was thrown in stagnant water and gunny bag was thrown in flowing water of Swan bridge near Ghaluwal. He has denied suggestion that accused persons have given disclosure statement that accused had escaped through window of bathroom of Sub jail Una (H.P.) with connivance of co-accused Tara Chand and again came back through same window. He has denied suggestion that co-accused Amrish Rana and proclaimed offender Gurjant led the police officials to Sub jail Una (H.P.) and identified the room where deceased Ashok Kumar was murdered and where his dead body was kept. He has denied suggestion that accused persons have also identified the window of bathroom through which both accused persons escaped along with dead body. He has denied suggestion that accused persons have pointed out the place behind IPH building where dead body of Ashok Kumar was initially kept in cooler. He has denied suggestion that accused persons have also pointed the place where they have thrown the gunny bag. He has denied suggestion that accused persons have also located the place where blanket was thrown in river and he has also denied suggestion that accused also located the place where kassi was thrown near Pandoga bridge. He has denied suggestion that accused persons also located the place where dead body of deceased was dumped in sand. He has denied suggestion that accused persons have also located the house from where kassi was brought by accused persons. He has denied suggestion that site plans were prepared at the spot.
8.11 P.W. 11 Kamaljit has stated that he was running a shop of photographer for the last 14 years and he was joined by police in the investigation. He has stated that on dated 18.10.2002 he took photographs of ventilator in sub jail Una (H.P.) which are Ext. P11 to Ext. P13. He has stated that he also saw negatives in Court but same are not of photographs Ext. P11 to Ext. P13.
8.12 P.W. 12 Rajiv has stated that he is performing the work of photography for the last eight years at Una (H.P.). He has stated that he was joined by police in the investigation of case in Sub jail Una (H.P.). He has stated that he took the photographs of room of Sub jail Una (H.P.) which are Ext. P14 to Ext. P22 and negatives are Ext. P23. He has stated that he took the photographs of hairs and disposable syringe, box and cot as per instance of police officials.
8.13 P.W. 13 Ved Parkash has stated that he was posted as MHC P.S. Una (H.P.) during the year 2001 to 2004, He has stated that on dated 2.9.2002 he recorded FIR Ext. PH on the basis of ruka Ext. PJ and also made endorsement Ext. PJ/1 on the ruka and handed over the file to C. Surjit Singh to hand over the same to SHO at the spot. He has stated that on dated 2.9.2002 C. Tilak Raj deposited viscera along with belonging of deceased sealed with seal of mortuary of Zonal Hospital Una (H.P.) and he deposited the same in malkhana on the same day. He has stated that on dated 9.9.2002 Dharam Chand SHO deposited with him three parcels duly sealed with seal BS and lock and same were deposited in malkhana by him. He has stated that on dated 16.9.2002 five parcels were sent through C. Lal Chand to FSL Junga vide RC No. 223/02 along with documents for chemical examination. He has further stated that constable handed over the receipt to him after return and case property remained intact in his custody. He has stated that on dated 13.10.2002 Harnam Singh SHO deposited scooter and wooden box along with lock and same were kept in malkhana and nobody tampered so long they remained in malkhana. He has stated that lock is Ext. P9, box is Ext. P10 and another lock is Ext. P24.
8.14 P.W. 14 HC Vipan Kumar has stated that he has brought summoned record and further stated that during the year 2002 he was posted as Munshi in P.S. Una (H.P.) and he recorded rapat No. 25 dated 26.8.2002 copy of which is Ext. PK and same is correct as per original record. He has stated that he recorded rapat No. 29 dated 2.9.2002 which is Ext. PL and same is correct as per original record. He has stated that register of rapat roznamcha should be certified by Superior Officer and further stated that there is no certificate of superior officer in the register brought by him. He has stated that register is normally destroyed after a period of two years.
8.15 P.W. 15 S.K. Prashar Tehsildar has stated that in the year 2002 he was posted as Tehsildar Una (H.P.) and on dated 8.9.2002 he visited Sub jail Una (H.P.) on the order of SDM Una (H.P.). He has stated that police officials and SDM were also present. He has stated that accused Neeraj Kumar was also in custody of police. He has stated that police officials told that accused Neeraj Kumar has pointed out the room where some meeting took place. He has stated that police officials in fact wanted to seal the room and room was sealed in his presence. He has stated that police officials handed over the key of said room after locking the same. He has stated that next day a team of forensic expert came from Shimla and room was opened by said team after taking the key from him. He has stated that experts examined the meeting room from inside and syringe and hair were recovered from behind the box Ext. P10. He has stated that police also recovered hair from other part of room. He has denied suggestion that syringe Ext. P27 and hairs Ext. P28 and Ext. P29 were not recovered from meeting room of Sub jail.
8.16 P.W. 16 Mela Ram has stated that on dated 24.8.2002 he was posted as Santri home guard in Sub jail Una (H.P.) and his duty was w.e.f. 12 PM to 7.30 PM on that day. He has stated that co-accused Amrish Rana and proclaimed offender Gurjant Singh were under trials in connection with triple murder case and were in judicial custody. He has stated that he was told by Bheem warder that co-accused Amrish Rana and proclaimed offender Gurjant wanted to meet call of nature. He has stated that thereafter he informed co-accused Tara Chand present in Court who was shift warder at that time. He has stated that co-accused Tara Chand opened the lock of main gate and allowed co-accused Amrish Rana and proclaimed offender Gurjant to meet call of nature outside the sub jail Una (H.P.). He has stated that toilet inside the jail premises was chocked. He has stated that when accused persons were outside the jail premises then 8-10 persons came from outside to meet them and they were discussing in the open compound. He has stated that initially these persons along with co-accused Amrish Rana and proclaimed offender Gurjant were sitting in the home guard room and then both accused persons took one person inside the meeting room of of sub jail premises. He has stated that there was no light in meeting room of sub jail Una (H.P.) on that day. He has stated that co-accused Amrish Rana and proclaimed offender Gurjant came out from meeting room of sub jail Una (H.P.) and third person remained inside the meeting room of sub jail Una (H.P.). He has stated that both Amrish Rana co-accused and proclaimed offender Gurjant told the above 8-10 persons that they should meet them tomorrow. He has stated that thereafter co-accused Tara Chand took inside sub jail Una (H.P.) both accused Amrish Rana and proclaimed offender Gurjant and they were put in prison cell. He has stated that thereafter co-accused Tara Chand went to office room of sub jail Una (H.P.) and took the torch and went to meeting room of sub jail Una (H.P.). He has stated that co-accused Tara Chand searched the meeting room of sub jail Una (H.P.) with said torch and he became apprehensive and he demanded torch from co-accused Tara Chand. He has stated that co-accused Tara Chand did not hand over to him the torch and thereafter he lid the match stick and noticed wooden box inside the meeting room of sub jail Una (H.P.). He has stated that lid of box was partly opened and he found dead body inside the wooden box. He has stated that thereafter he called co-accused Tara Chand who told him not to disclose to anybody otherwise he would be involved in criminal case. He has stated that co-accused Tara Chand told that accused persons are dangerous persons and he should not take any tussle with them. He has stated that he advised co-accused Tara Chand to inform officiating Superintendent of Jail about entire incident. He has stated that next day co-accused Tara Chand again came to him and he started weeping and told that he would be involved in criminal case. He has stated that on 2.9.2002 he again identified the same dead body in Zonal Hospital Una (H.P.) and later he came to know that dead body was of Ashok Kumar. He has stated that his statement was recorded before learned Additional Chief Judicial Magistrate Una (H.P.) is Ext. PM. He has stated that his statement was correctly recorded by learned Additional Chief Judicial Magistrate Una (H.P.) and he voluntarily made statement before learned Judicial Magistrate Una (H.P.). He has stated that box Ext. P10 is the same in which dead body of deceased Ashok Kumar was found in Sub jail Una (H.P.). He has stated that he could not disclose about incident as co-accused Tara Chand was pressuring him as well as threatening him and further stated that co-accused Amrish Rana and proclaimed offender Gurjant also threatened him in presence of co-accused Tara Chand. He has stated that accused persons also threatened that they would finish his family. He has stated that there were 4-5 home guards on duty in sub jail Una (H.P.) at the time of incident. He has stated that Maan Singh, Rommy Din, Piara Lal, Tarsem and Darshan were posted as home guards at the time of incident in Sub jail Una (H.P.). He has stated that 5-7 jail officials were on duty at the time of incident in Sub jail Una (H.P.). He has stated that jail officials as well as home guards were living in jail premises adjoining to main gate. He has stated that normally entries are made in register when any person used to enter the main gate. He has stated that duty of home guard is to ensure that no inmate should go outside from jail. He has stated that there were 20-25 inmates at the time of incident in Sub jail Una (H.P.). He has denied suggestion that deceased Ashok Kumar did not meet co-accused Amrish Rana and proclaimed offender Gurjant on dated 24.8.2002. He has denied suggestion that 8-10 persons did not come in Sub jail Una (H.P.). He has denied suggestion that deceased Ashok Kumar was not detained by co-accused Amrish Rana and proclaimed offender Gurjant in meeting room. He has admitted that co-accused Amrish Rana and proclaimed offender Gurjant are facing the trial for beating the police officials. He has denied suggestion that he was under the influence of local police officials.
8.17 P.W. 17 Chandan Singh has stated that deceased Ashok Kumar was his son and he was driver in chemical factory at Jhalera. He has stated that his son was missing since 24.8.2002. He has stated that his son was to appear in criminal court on dated 26.8.2002 at Una (H.P.) in triple murder case. He has stated that deceased Ashok Kumar was co-accused along with accused persons in that case. He has stated that he received a telephonic call from Naveen Kumar who was co-accused in the case that his son did not appear in the hearing of triple murder criminal case. He has stated that thereafter he moved application on dated 26.8.2002 in Police Station Una (H.P.) regarding missing of his son. He has stated that thereafter on dated 29.8.2002 somebody called him to S.S.P. Una (H.P.) regarding dead body which was lying near Rampur. He has stated that dead body of deceased was not found there. He has further stated that he made efforts to trace deceased for four days. He has stated that thereafter he inquired from co-accused Amrish Rana regarding whereabouts of deceased who told that after 3-4 days his deceased son would be available. He has further stated that when he further inquired from co-accused Amrish Rana about deceased then Amrish Rana co-accused told that deceased would be available alive. He has further stated that thereafter on dated 30.8.2002 he approached SHO Una (H.P.) and SHO made inquiry from co-accused Amrish Rana and proclaimed offender Gurjant Singh in Sub jail Una (H.P.). He has further stated that accused persons also threatened SHO. He has also stated that on dated 2.9.2002 dead body of his deceased son was found in river of Khad village. He has stated that thereafter he boarded the bus and reached Khad. He has stated that police party including SP and Dy. S.P. were already present there and he identified the dead body of his son. He has stated that shirt Ext. P30, pant Ext. P31, undervest Ext. P32, underwear Ext. P33, pair of shoes Ext. P34, belt Ext. P35, and pair of socks Ext. P36 are same. He has stated that on dated 19.8.2002 his son told him that he would be killed by co-accused Amrish Rana and proclaimed offender Gurjant and when he inquired about the cause of fear then his son advised him not to worry. He has stated that his deceased son remained in jail for 8/9 months in triple murder case. He has further stated that in triple murder case co-accused Amrish Rana and proclaimed offender Gurjant Singh were also co-accused. He has stated that he does not know that case under Section 307 IPC was also registered against the deceased. He has stated that he does not know that another criminal case under Section 326 IPC was also registered against the deceased. He has denied suggestion that there was no threat by Amrish Rana to his deceased son. He has denied suggestion that his son was not killed by accused persons. He has denied suggestion that his deceased son was involved with various criminal groups and was having number of enemies and some unknown persons have killed him.
8.18 P.W. 18 Mohinder Singh has stated that on dated 29.9.2002 Mela Ram met him at Bangana during noon time and at that time he was perplexed and wanted to consult him. He has stated that Mela Ram told him that when Mela Ram was on duty in sub jail Una (H.P.) on dated 24.8.2002 at about 7.30 PM 7-8 persons were holding a meeting in jail premises. He has stated that Mela Ram also told him that co-accused Amrish Rana and proclaimed offender Gurjant took one person inside the meeting room of sub jail Una (H.P.) and thereafter after 10-15 minutes two persons came out of room and one person remained inside meeting room of sub jail Una (H.P.). He has stated that Mela Ram also told him that he suspected something and he went inside the meeting room of sub jail Una (H.P.) and he saw dead body of a person inside the box in meeting room of sub jail Una (H.P.). He has stated that thereafter Mela Ram told him that fact of dead body was narrated by him to co-accused Tara Cand jail warder. He has further stated that Mela Ram told that co-accused Tara Chand advised him not to disclose this fact to any person. He has stated that thereafter Mela Ram asked his advice and he told Mela Ram to act according to his own conscious. He has stated that he did not file any complaint about commission of criminal offence. He has denied suggestion that Mela Ram did not disclose any fact to him. He has denied suggestion that he became witness in present case at the request of Harnam Singh who is I.O. in this case.
8.19 P.W. 19 Rikhi Ram has stated that he was on temporary duty in the month of August 2002 in Sub jail Una (H.P.) as Assistant Superintendent sub jail Una (H.P.) and he joined duty on dated 19.8.2002 in Sub jail Una (H.P.). He has stated that meeting time of visitors in Sub jail Una (H.P.) is from 10 AM to 12 Noon and 3 PM to 5 PM. He has stated that on dated 24.8.2002 Mela Ram was on Santri duty and co-accused Tara Chand was head warder of Sub jail Una (H.P.). He has stated that on dated 24.8.2002 at about 8.30 PM co-accused Tara Chand came to his residence and told him that 7-8 persons tried to meet co-accused Amrish Rana and proclaimed offender Gurjant Singh and he tried to prevent them however they talked with each other for 2/3 minutes and thereafter those 7-8 persons left the Sub jail premises Una (H.P.). He has stated that thereafter he inquired from co-accused Tara Chand whether he secured lock up of prison cell and he replied in affirmative and thereafter co-accused Tara Chand left back. He has stated that at that time SDM Una (H.P.) was officiating Superintendent Jail and he has further stated that he was not aware about telephone numbers of his residence and he informed him on Monday. He has stated that he had not given anything in writing to SDM Una (H.P.) on Monday. He has further stated that in the last week of August 2002 police came in Sub jail Una (H.P.) and they wanted to take away Mela Ram and co-accused Tara Chand for interrogation. He has stated that SDM Una (H.P.) was not available so he did not allow the police officials to take Mela Ram and co-accused Tara Chand. He has stated that thereafter on dated 8.9.2002 police officials along with S.P. and Dy. S.P. and SDM along with one person in custody came to Sub jail Una (H.P.) and told that said person in custody would point out the place to SDM and Dy. S.P. where conversation took place. He has stated that said person in custody pointed out the said place which is home guard room and one another room which was used during rainy days as visitor''s room. He has stated that said room was sealed by SHO in presence of Tehsildar and key was handed over to Tehsildar Una (H.P.). He has stated that thereafter next day police party along with SHO, Dy. S.P. and SP came to Sub jail Una (H.P.) and Tehsildar Una (H.P.) also came and handed over the key with which sealed room was opened. He has stated that police party along with doctor and Tehsildar went inside the room and he was outside. He has stated that later on all came to his office room where they prepared documents. He has stated that nothing was recovered in his presence. He has stated that Tehsildar showed him two parcels containing hairs and syringe. The witness was declared hostile by prosecution. He has stated that he has not told to police that co-accused Amrish Rana and proclaimed offender Gurjant Singh held a meeting with 7-8 persons inside the jail in guard room. He has denied suggestion that hairs were collected from one corner of room and from cot which was kept inside the room. He has denied suggestion that hairs and syringe were separately parceled and duly sealed. He has denied suggestion that he is deposing falsely in order to save co-accused Tara Chand. He has stated that during his tenure nobody was allowed to meet the under trials except as per rules and during visiting hours. He has stated that there are also Safai Karamcharis in Sub jail Una (H.P.) who carry routine cleaning of Sub jail and meeting room and guard room and other premises of the sub jail Una (H.P.). He has stated that said rooms are cleaned in the morning and in the evening. He has stated that key of outer and inner gate remain with Santri. He has stated that Mela Ram was Santri at that time. He has stated that regular record is maintained with regard to the visits of Gazetted and non-gazetted officers. He has stated that time and purpose of visit is also recorded. He has denied suggestion that in order to save himself from becoming co-accused in present case he prepared document Ext. C1.
8.20 P.W. 20 Dr. Suresh Sankhayan has stated that he is working as Professor and Head Department of Forensic Medicines in R.P. Government Medical College Kangra at Tanda since November 1997. He has stated that police moved an application for conducting post mortem of deceased Ashok Kumar aged 30 years resident of Annila and before conducting the post mortem inquest papers Ext. PR and Ext. PS were handed over to him by police which bear his signatures. He has stated that during post mortem examination on the dead body of deceased Ashok Kumar he along with Dr. Umesh Gautam observed that on external appearance dead body was of a male aged 30 years measuring 63 1/2" in advance stage of purification with peeling off of superficial layers of skin. He has stated that subcutaneous fact of above body showed early changes of adepocere formation and whole body showed bleaching of skin with corrugation of skin of soles and palms. He has further stated that rigor mortis were passed off completely and hypostasis post mortem stains could not be made out. He has stated that external injuries which could be made out on body were contusions along shoulder blades, vertebral column on the back, medial side of thighs and legs and also along the outer and inner surface of both arms. He has stated that scalp skull and vertebral showed no injury. He has stated that left side of chest muscles was slightly contused and all ribs were intact. He has further stated that pleurae was normal and there were fractures of left great cornu of hyoid bone and right side of cricoid cartilage and inferior corno of thyroid cartilage also showed inward compression fracture. He has further stated that on examination of lungs both legs were found pulpy and heart was also found pulpy but vessels were found normal. He has also stated that on examination of abdomen superficial layer of skin was found peeled off and peritoneum was found intact and no bleeding was found in peritoneum cavity. He has stated that injury around mouth and nostril could not be made out due to peeling of skin and subcutaneous tissues showed adepocere. He has stated that stomach and its contents were pulpy and empty and intestines were full of gases and slight in large intestine and livers, spleen and kidney were found pulpy. He has stated that bladder was empty and external genitals showed signs of adepocere. He has stated that there was no fracture of any bone in the body except for the laryngeal bones and there were sand particles in the trachea, bronchi and esophagus and stomach and lungs were found pulpy and collapsed. He has stated that death took place due to asphyxia as a result of throttling. He has stated that probable time between injury and death was few minutes and between death and post mortem was 7 to 14 days. He has stated that after post mortem he handed over the reconstructed dead body, post mortem report, packet of clothes and viscera for chemical analysis and packet containing hairs of deceased. He has stated that he issued post mortem report Ext. PT which bears his signatures. He has stated that it was possible to put a body of deceased in box immediately after the death. He has denied suggestion that he has given wrong opinion against medical jurisprudence.
8.21 P.W. 21 Ajay Sharma has stated that on dated 25.8.2002 at about 6 PM he had gone to Sub jail Una (H.P.) where he inquired about health of inmates. He has stated that in the meantime co-accused Amrish Rana, proclaimed offender Gurjant and brother-in-law of proclaimed offender Gurjant were standing in the verandah. He has stated that brother-in-law of proclaimed offender Gurjant came on scooter. He has stated that scooter of brother-in-law of proclaimed offender Gurjant was not in proper form and thereafter proclaimed offender Gurjant and co-accused Amrish Rana requested him to give his scooter to brother-in-law of proclaimed offender Gurjant as he wanted to go to Gagret area to get some money. He has stated that on their repeated requests he gave his scooter to brother-in-law of proclaimed offender Gurjant who brought back his scooter at about 9.15 AM. He has stated that his scooter was in same condition as it was took away by brother-in-law of proclaimed offender Gurjant. He has stated that on next day he came to know that his scooter was used by accused and he has stated that on next day he handed over the scooter along with documents to the police and recovery memo was prepared. He has stated that on same day police also took into possession one wooden box from a room in the sub jail Una (H.P.) vide memo Ext. PC which bears his signatures. He has stated that wooden box is Ext. P10 and he has stated that police officials also took into possession the record from sub jail Una (H.P.) vide recovery memo Ext. PA which bears his signatures. He has stated that he was posted as Pharmacist in sub jail Una (H.P.) at that time. He has stated that Ext. P1 to Ext. P8 are photocopies of record of sub jail Una (H.P.) which were took into possession. He has stated that there were 16-17 inmates in sub jail Una (H.P.) at that time. He has denied suggestion that scooter was not taken by brother-in-law of proclaimed offender Gurjant Singh. He has stated that box Ext. P10 remained in meeting room of sub jail Una (H.P.) till it was took into possession on dated 13.10.2002.
8.22 P.W. 22 Dinesh Minhas has stated that he is running a shop of photographer at Ispur for the last 13 years and he was joined in investigation of case. He has stated that he took the photographs of dead body. He has stated that photographs are Ext. P39 to Ext. P49 and negatives are Ext. P50 (Eleven in number).
8.23 P.W. 23 Rajesh Kumar has stated that he does not know anything and further stated that his signatures were obtained by police in police station. He has stated that Ashwani Kumar is known to him. He has denied suggestion that on dated 24.8.2002 in his presence as well as in presence of Ashwani Kumar accused Neeraj Kumar @ Lambar disclosed during investigation to the police that he could get the room identified where co-accused Amrish Rana and proclaimed offender Gurjant Singh involved in triple murder case met deceased Ashok Kumar along with others namely Rajinder Singh, Rajesh alias Seth, Sandeep alias Motta, Rajesh @ Pinku, Vijay Kumar, Satnam, Vinay Kumar Naveen Kumar and held a meeting. He has denied suggestion that disclosure statement of accused was recorded. He has denied suggestion that accused persons pressurized him not to disclose the true facts in Court. He has denied suggestion that he had given false statement due to fear of accused persons. He has stated that he has deposed true facts to the Court.
8.24 P.W. 24 Inspector Dharam Chand has stated that he remained posted as SHO in P.S. Una (H.P.) during the year 2001-2002 and further stated that on dated 26.8.2002 one Chandan Singh reported the matter to police disclosing therein that his son Ashok Kumar was missing since dated 24.8.2002 and same was incorporated into daily diary report No. 25 dated 26.8.2002 which is Ext. PK. He has further stated that thereafter on dated 2.9.2002 a telephonic message was received from P.P. Pandoga in which it was informed that Ward Panch Varinder Jeet Singh G.P. Khad had informed that a male dead body was lying on bank of Swan river at village Khad near the house of Bajigar and this information was recorded into daily diary report No. 29 dated 2.9.2002 copy of which is Ext. PL. He has stated that thereafter he along with ASI Vishwas Kumar and other police officials went to the spot with direction to MHC to send the photographer to the spot. He has stated that when he reached at the spot police officials from P.P. Pandoga and local people have already reached at the spot. He has stated that he found one male dead body lying on bank of Swan river out of the water and he called the person who reported the matter for missing of his son to identify the body of his son namely Ashok Kumar who was missing. He has stated that he recorded statement of Chandan Singh under Section 154 Cr.P.C. Ext. PJ and sent the same through ruka Ext. P.W. 24/A for registration of FIR over which FIR Ext. PH was registered with endorsement Ext. PJ/1. He has further stated that he took the photographs of spot including dead body Ext. P39 to Ext. P49 and negatives thereof are Ext. P50 and thereafter he prepared inquest reports Ext. PR and Ext. PS and thereafter sent the dead body for post mortem vide application Ext. PO and prepared spot map Ext. P.W. 24/B of the spot including marginal notes thereof. He has stated that he also recorded the statement of witness Varinder Jeet Singh under Section 161 Cr.P.C. and then he came back from the spot along with Prem Kumar and Naveen and police officials. He has stated that he sent police officials to call Dr. Suresh Sankhayana from Medical College Tanda being forensic expert. He has stated that on dated 3.9.2002 he arrested Ashok, Rajinder, Sandeep, Neeraj, Dinesh @ Pinku and Dinesh @ Seth and also sent ASI Vishwas to arrest Satnam and Vijay. He has stated that Dr. Suresh Sankhayan and Dr. Umesh Gautam conducted the post mortem vide post mortem report Ext. PT and handed over three parcels containing clothes of deceased, hair of deceased and viscera and sealed them and thereafter handed over the dead body to father of deceased. He has stated that he deposited sealed parcels in malkhana with MHC P.S. Sadar through C. Jatinder Singh. He has stated that on dated 5.9.2002 he associated the witnesses Mela Ram and Tara Chand and on dated 8.9.2002 he recorded statement of Raj Kumar. He has stated that during custody he recorded disclosure statement Ext. P.W. 23/A. He has stated that he also prepared spot map and also prepared marginal notes. He has stated that he also obtained the keys from S.K. Parashar and opened the sealed room and forensic expert inspected the spot in presence of witnesses. He has stated that one wooden box was found in room and one empty disposable syringe was also found near wooden box. He has stated that some hairs were also lying. He has stated that disposable syringe was also took into possession and thereafter sealed in packet and hairs were also placed in sealed box. He has stated that he also prepared spot map of room Ext. P.W. 24/D including marginal notes. He has stated that lock Ext. P25, pair of key Ext. P26, syringe Ext. P27, hairs Ext. P28 and Ext. P29 took into possession. He has also stated that he recorded statements of witnesses of seizure memos and also recorded supplementary statement. He has stated that he deposited the articles with MHC P.S. Sadar and on dated 10.9.2002 he accompanied the forensic expert team to the spot at Khad from where dead body was recovered. He has stated that thereafter he was transferred and handed over the case file to ASI Vishwas. He has admitted that deceased Ashok Kumar was one of co-accused in triple murder case and deceased Ashok had also remained in judicial custody in Sub jail Una (H.P.) in connection with triple murder case. He has stated that witness Naveen Kumar was also one of co-accused in triple murder case and he also remained in judicial custody in triple murder case. He has denied suggestion that local police officials were annoyed with co-accused Amrish Rana and proclaimed offender Gurjant Singh and they have planted a false case against them. He has denied suggestion that hairs and syringe were planted to strengthen the prosecution case.
8.25 P.W. 25 HC Sukhdev Singh had tendered the summoned record.
8.26 P.W. 26 Harnam Singh has stated that in the year 2002 he was posted as SHO in P.S. Una (H.P.) and on dated 25.9.2002 he took investigation from Ruldu Ram. He has stated that he recorded statement of Mohinder Singh. He has stated that he recorded supplementary statement of Mela Ram on dated 1.10.2002. He has stated that on dated 8.9.2002 he associated co-accused Tara Chand on the ground that he had conspired with other co-accused in commission of offence. He has stated that he also interrogated co-accused Amrish Rana and proclaimed offender Gurjant w.e.f. 1.10.2002 to 12.10.2002. He has stated that on dated 12.10.2002 co-accused Amrish Rana had made a disclosure statement Ext. PE which was recorded in presence of Avtar Singh and Hoshiar Singh. He has stated that scooter bearing No. HP-22-8137 also took into possession vide seizure memo Ext. PB. He has stated that wooden box Ext. P10 was also took into possession vide seizure memo Ext. PC. He has stated that it had come during investigation that dead body of deceased Ashok Kumar was kept by co-accused Amrish Rana and proclaimed offender Gurjant in wooden box Ext. P10 and thereafter during night on dated 24.8.2002 with connivance of co-accused Tara Chand who was warder of Sub jail Una (H.P.), co-accused Amrish Rana and proclaimed offence Gurjant shifted the dead body to back side of IPH office after wrapping the same in blanket and placed the same in gunny bag. He has stated that thereafter on dated 25.8.2002 in the night co-accused Amrish Rana and proclaimed offender Gurjant in connivance with co-accused Tara Chand came out of jail through window and transported the dead body to a river in village Khad on a scooter which was driven by co-accused Amrish Rana. He has stated that proclaimed offender Gurjant sat upon the scooter as pillion rider and caught the dead body of deceased and thereafter buried dead body in river. He has stated that he prepared spot map Ext. P.W. 26/A of Sub jail Una (H.P.) which is in his hand and marginal notes are prepared. He has stated that he prepared spot map Ext. P.W. 26/B of place where empty gunny bag was thrown. He has stated that he also prepared spot map Ext. P.W. 26/C where blanket was stated to have been thrown. He has stated that Ext. P.W. 26/D is the spot map where spade was thrown which was used for burying the dead body. He has stated that he also prepared site plan Ext. P.W. 26/E where dead body was buried. He has also stated that he took into possession documents Ext. P1 to Ext. P8 vide seizure memo Ext. PA in presence of ASI Vishwas and Ajay Sharma. He has also stated that he also obtained photographs of window, bathroom Ext. P11 to Ext. P13 and also recorded statements of welder Dina Nath and photographer Kamaljit. He has stated that statement of Mela Ram under Section 164 Cr.P.C. was also recorded before Additional Chief Judicial Magistrate. He has stated that he also recorded statements of other witnesses. He has stated that during investigation it came that offence in question was committed by co-accused Amrish Rana and proclaimed offender Gurjant in connivance with co-accused Tara Chand, who was warder in sub jail Una (H.P.) He has stated that other co-accused remained sleeping in sub jail Una (H.P.) when co-accused Amrish Rana and proclaimed offender Gurjant came out of jail through window of bathroom and they were negligent. He has stated that reports of Assistant Director FSL are Ext. P.W. 26/F and Ext. P.W. 26/G. He has stated that as per investigation motive behind the murder of deceased Ashok Kumar was that Ashok Kumar was co-accused in triple murder case but he was on bail and other co-accused namely Amrish Rana and proclaimed offender Gurjant wanted him to be absent from hearings in triple murder case so that trial of triple murder case could be delayed. He has stated that co-accused Amrish Rana and proclaimed offender Gurjant also wanted that deceased Ashok should arrange finance but deceased Ashok Kumar did not agree for proposal. He has stated that Darshan Singh, Ram Deen, Piara Singh, Tarsem and Maan Singh home guards were also on duty during the day of incident but he did not record their statements. He has stated that he did not make Darshan Singh, Ram Deen, Piara Singh, Tarsem and Maan Singh home guards either as accused or as witnesses. He has stated that he has not specifically mentioned in site plan the passage through which dead body was taken out from sub jail Una (H.P.). He has stated that he has shown the passage of carrying the dead body from sub jail Una (H.P.) in question by drawing two lines. He has stated that in his statement dated 5.9.2002 Mela Ram has not shown himself as an eye witness.
8.27 D.W. 1 Neeraj Kumar has stated that in August 2002 he was running a shop near Bus Stand Una (H.P.) and nobody came to him on dated 24.8.2002 to visit Sub jail Una (H.P.). He has stated that he did not visit sub jail Una (H.P.) to meet co-accused Amrish Rana along with other persons. He has stated that he did not know co-accused Amrish Rana and he came to know about co-accused Amrish Rana only when police detained him in the case. He has stated that he also does not know Naveen Kumar. He has stated that he along with other persons were arrested by police on dated 28.8.2002 and 29.8.2002. He has stated that police officials wanted him to be a witness against co-accused Amrish Rana because police officials were annoyed with co-accused Amrish Rana. He has stated that he refused to appear as a witness against him. He has stated that he was discharged by Court after 26-27 days of his arrest. He has admitted that he is facing about 26 criminal cases in different Courts. He has denied suggestion that he remained home guard in Sub jail Una (H.P.). He has denied suggestion that he has friendly relations with co-accused Amrish Rana and he wanted to save accused persons.
8.28 D.W. 2 Prem Chand has stated that he is working as Safar Karamchari since 1972 and he used to clean the jail premises including barracks, office and meeting room of Sub jail Una (H.P.). He has stated that he used to clean the said premises daily in morning and in evening. He has stated that he also used to clean the premises outside the barracks of inmates of jail. He has stated that he is only sweeper in District Jail Una (H.P.). He has stated that his duty hours were 8 AM to 5 PM. He has stated that he does not remember whether it was rainy on 24.8.2002.
Reasons for findings in Criminal Appeal No. 423 of 2007 titled Tara Chand v. State of H.P. and Criminal Appeal No. 476 of 2007 titled Amrish Rana v. State of H.P.
9. Learned Advocate appearing on behalf of the appellants submitted that present case is based upon circumstantial evidence and based upon last seen theory and chain of circumstances is not complete in present case is accepted for the reasons hereinafter mentioned. It is the case of prosecution that on dated 24.8.2002 deceased namely Ashok Kumar along with 8-10 persons came to meet co-accused Amrish Rana and proclaimed offender Gurjant in Sub jail Una (H.P.) and thereafter co-accused Amrish Rana and proclaimed offender Gurjant took deceased in meeting room of Sub jail Una (H.P.) and killed him by way of throttling. It is further case of prosecution that thereafter co-accused Amrish Rana and proclaimed offender Gurjant kept the dead body of deceased Ashok Kumar in a wooden box kept in the meeting room of sub jail Una (H.P.) and thereafter during night of 24.8.2002 wrapped the dead body of deceased Ashok Kumar in blanket and placed it in gunny bag and thereafter in the night took the dead body in office of IPH from sub jail Una (H.P.) and kept the dead body behind two coolers. It is the case of prosecution that thereafter co-accused Amrish Rana and proclaimed offender Gurjant on dated 25.8.2002 cut the iron rod of window of bathroom of jail and came out of sub jail Una (H.P.) and took the dead body upon scooter having registration No. HP-22-8137 40 K.m. away and buried the dead body of deceased in river. It is case of prosecution that co-accused Amrish Rana was driving scooter and proclaimed offender Gurjant was pillion rider of scooter and was carrying dead body in his hands. It is further case of prosecution that thereafter co-accused Amrish Rana and proclaimed offender Gurjant again came in jail prison cell through window of bathroom of Sub jail Una (H.P.) in connivance with co-accused Tara Chand. It is the case of prosecution that murder of deceased was committed inside the meeting room of Sub jail Una (H.P.) when co-accused Amrish Rana and proclaimed offender Gurjant were facing trial of triple murder case and when co-accused Amrish Rana and proclaimed offender Gurjant were in judicial custody in Sub jail Una (H.P.).
10. We have carefully perused the testimony of P.W. 5 Dina Nath. P.W. 5 Dina Nath has specifically stated that he did not perform the welding work of strip of iron of window of bathroom which was already cut. It is held that testimony of P.W. 5 Dina Nath is hostile to prosecution because by way of testimony of P.W. 5 Dina Nath chain of circumstantial evidence relied by prosecution that co-accused Amrish Rana and proclaimed offender Gurjant have cut the strip of iron window situated in bathroom of sub jail Una (H.P.) on dated 25.8.2002 and thereafter came out of sub jail Una (H.P.) to carry dead body to a river on scooter is broken.
11. We have also carefully perused the testimony of P.W. 6 Kapil Dogra warder who has specifically stated that he does not know that welding work of window of bathroom of sub jail Una (H.P.) was conducted. He has stated that he was not asked by Rikhi Ram Assistant Superintendent sub jail Una (H.P.) to bring welder for the purpose of welding of iron strip of window of bathroom of sub jail Una (H.P.). He has stated that he did not notice that iron rod of window of bathroom of sub jail Una (H.P.) was broken in such a manner that person could easily come and go through window. It is held that testimony of P.W. 6 Kapil Dogra has also broken the chain of circumstantial evidence relied by prosecution.
12. We have carefully perused the statement of P.W. 8 Sat Parkash who has specifically stated that accused persons did not demand any kassi on the pretext that their tractor had stuck in mud. He has denied suggestion that two persons came during rainy season and demanded kassi from him on the pretext that their tractor was stuck in mud. P.W. 8 Sat Parkash also refused to identify co-accused Amrish Rana and proclaimed offender Gurjant in Court. Hence it is held that testimony of P.W. 8 Sat Parkash is also hostile to prosecution because testimony of P.W. 8 has broken the chain of circumstantial evidence as relied by prosecution.
13. We have carefully perused the testimony of P.W. 9 Subhash Chand warder who has specifically stated in positive cogent and reliable manner that he has not kept the blanket in wooden box which was kept in meeting room. He has also stated that lock of wooden box could be locked and opened easily by pressing the lid. He has denied suggestion that blanket was missing from box and he has also denied suggestion that he had kept the blanket in box in meeting room. He has denied suggestion that wooden box kept in meeting room was washed and wet. He has denied suggestion that lock was uprooted. He has denied suggestion that accused persons told him that they would supply him the new blanket. He has denied suggestion that accused persons have kept the dead body of deceased in box which was kept in meeting room in Sub jail Una (H.P.). He has denied suggestion that iron rod of window was broken. He has denied suggestion that welding work was done in window of bathroom of Sub jail Una (H.P.). Hence it is held that testimony of P.W. 9 Subhash Chand warder is also hostile to prosecution and it is further held that testimony of P.W. 9 has also broken the chain of circumstantial evidence relied by prosecution.
14. We have carefully perused testimony of P.W. 10 Avtar Singh who is a witness of disclosure statement. He has stated that accused did not give any disclosure statement in his presence that dead body was wrapped in blanket and thereafter kept in wooden box in Sub jail Una (H.P.) and thereafter dead body was placed in gunny bag. He has stated that accused persons have not given any disclosure statement that dead body was kept behind IPH building between the coolers. He has stated that accused persons have not given disclosure statement that accused persons carried out the dead body on scooter No. HP-22-8137 to a river and buried there. We are of the opinion that testimony of Avtar Singh P.W. 10 is hostile to the prosecution and we are of the opinion that testimony of P.W. 10 Avtar has also broken the chain of circumstantial evidence relied by prosecution.
15. We have carefully perused the testimony of P.W. 11 Kamaljit Singh photographer who has stated that he took the photographs of ventilator of Sub jail Una (H.P.) from where accused persons escaped during midnight and carried the dead body upon scooter towards a river which was situated at a distance of 40 K.m. from jail premises. P.W. 11 has specifically stated that negatives of photographs are not available on record. P.W. 11 has further stated that negatives of photographs placed on record are not of photographs of Ext. P11 to Ext. P13. It is well settled law that photographs without negatives are not admissible in evidence. It is held that testimony of P.W. 11 photographer is also hostile to prosecution and it is further held that chain of circumstantial evidence is broken as per testimony of P.W. 11 photographer in present case.
16. We have also carefully perused the testimony of P.W. 16 Mela Ram who was a star witness of prosecution and as per prosecution story P.W. 16 Mela Ram has personally seen co-accused Amrish Rana and proclaimed offender Gurjant taking the deceased Ashok in meeting room of sub jail Una (H.P.) and thereafter only co-accused Amrish Rana and proclaimed offender Gurjant came out and dead body of deceased was found in wooden box which was kept in meeting room of sub jail Una (H.P.). Statement of P.W. 16 Mela Ram was recorded for the first time on dated 5.9.2002 and thereafter supplementary statement of P.W. 16 Mela Ram was recorded on dated 1.10.2002 and thereafter statement of P.W. 16 Mela Ram was recorded before Judicial Magistrate under Section 164 Cr.P.C. on dated 21.10.2002. P.W. 16 Mela Ram was Santri home guard posted in Sub jail Una (H.P.) on dated 24.8.2002 at the time of alleged incident and his duty was w.e.f. 12 PM to 7.30 PM and case of prosecution is that P.W. 16 Mela Ram saw that at about 7/7.15 PM in the evening co-accused Amrish Rana and proclaimed offender Gurjant took the deceased Ashok Kumar in meeting room of sub jail Una (H.P.) and thereafter co-accused Amrish Rana and proclaimed offender Gurjant came out of meeting room of sub jail Una (H.P.) and deceased Ashok Kumar did not come out of meeting room of sub jail Una (H.P.) and his dead body was found in wooden box which was kept in meeting room of Sub jail Una (H.P.). There is material improvement in statement of P.W. 16 Mela Ram recorded on dated 5.9.2002, 1.10.2002 and then 21.10.2002. When statement of Mela Ram was recorded on dated 5.9.2002 by Investigating Officer Mela Ram has simply stated that he had a suspicion that deceased was murdered by co-accused Amrish Rana and proclaimed offender Gurjant on dated 24.8.2002 in the meeting room of Sub jail Una (H.P.) between 7 to 7.15 PM. When statement of P.W. 16 Mela Ram was recorded on dated 5.9.2002 P.W. 16 Mela Ram did not inform Investigating Officer that on dated 24.8.2002 after 7.15 PM he personally entered into the meeting room and saw the dead body kept in wooden box with match stick. When supplementary statement of P.W. 16 Mela Ram was recorded on dated 1.10.2002 P.W. 16 Mela Ram has made the improvement and disclosed to Investigating Officer that he has personally saw that dead body of deceased Ashok Kumar was kept in wooden box which was kept in meeting room of Sub jail Una (H.P.). Even P.W. 16 Mela Ram did not report the matter in writing to any competent authority w.e.f. 24.8.2002 to 5.9.2002 and conclead the fact. We are of the opinion that it is not expedient in the ends of justice to convict the accused persons solely on testimony of P.W. 16 Mela Ram because P.W. 16 has given contradictory testimony on dated 5.9.2002 and 21.10.2002 and had made the improvements. We are of the opinion that as P.W. 16 Mela Ram was posted as Santri home guard he was directly responsible to inform the incident to the competent authority of law qua murder but P.W. 16 Mela Ram did not disclose the incident of murder w.e.f. 24.8.2002 till 5.9.2002. Hence non-filing of criminal complaint w.e.f. 24.8.2002 to 5.9.2002 on the part of P.W. 16 Mela Ram has created doubt in the mind of Court and we are of the opinion that testimony of P.W. 16 Mela Ram is not sufficient to convict accused persons keeping in view of material improvement in testimony of P.W. 16 Mela Ram recorded on dated 5.9.2002 and 1.10.2002 and keeping in view act and conduct of Mela Ram after alleged incident.
17. We have also carefully perused the testimony of P.W. 19 Rikhi Ram Assistant Superintendent Sub jail Una (H.P.) who has stated in positive manner that meeting time of visitors in sub jail Una (H.P.) was 10 AM to 12 Noon and 3 PM to 5 PM. We fail to understand that how 7-8 persons were allowed to meet co-accused Amrish Rana and proclaimed offender Gurjant who were in judicial custody in violation of jail manual by the staff of jail. P.W. 19 Rikhi Ram Assistant Superintendent Sub jail Una (H.P.) has specifically stated that on dated 24.8.2002 P.W. 16 Mela Ram was on santri duty and co-accused Tara Chand was warder of jail. No explanation has been given by prosecution as to how 7-8 persons including deceased were allowed to meet co-accused Amrish Rana and proclaimed offender Gurjant after 5 PM contrary to Prison Act and contrary to jail manual. Even P.W. 19 Rikhi Ram officiating Assistant Superintendent sub jail Una (H.P.) has specifically stated in his testimony that hairs and syringe were not recovered in his presence from meeting room of sub jail Una (H.P.) and further stated that keys of outer and inner gate remained with Santri. We are of the opinion that as per Prison Act and H.P. jail manual purpose of visit is recorded in visit register kept in sub jail Una (H.P.) We have carefully perused the entries recorded in registers placed on record and there is no entry of meeting of 7-8 persons including deceased with co-accused Amrish Rana and proclaimed offender Gurjant Singh after 5 PM. Hence it is held that testimony of P.W. 19 Rikhi Ram has also broken the chain of circumstantial evidence relied by prosecution.
18. Even we have carefully perused the testimony of P.W. 23 Rajesh Kumar. P.W. 23 Rajesh Kumar has stated that he does not know anything about case and further stated that his signatures were obtained in police station by Investigating Agency. We are of the opinion that testimony of P.W. 23 Rajesh Kumar is hostile to prosecution and chain of circumstantial evidence is broken as per testimony of P.W. 23 Rajesh Kumar in present case.
19. Even it is the case of prosecution that co-accused Amrish Rana and proclaimed offender Gurjant during night time on dated 24.8.2002 in connivance with co-accused Tara Chand who was warder of Sub jail Una (H.P.) shifted the dead body of deceased to back side of IPH office after wrapping the same in blanket and placing it in the gunny bag. It is further case of prosecution that thereafter on dated 25.8.2002 in night co-accused Amrish Rana and proclaimed offender Gurjant came out of jail through window of bathroom of sub jail Una (H.P.) and thereafter transported the dead body to river in village on scooter having registration No. HP-22-8137. It is the case of prosecution that Darshan Singh, Ram Deen, Piara Singh, Tarsem and Maan Singh home guards were on duty on dated 24.8.2002 and 25.8.2002 but prosecution did not examine the above said persons in order to prove the chain of circumstantial evidence. Prosecution has failed to explain the reasons that how co-accused Amrish Rana and proclaimed offender Gurjant who were lodged in Sub jail Una (H.P.) in triple murder case succeeded to shift the dead body of deceased Ashok Kumar from meeting room of Sub jail Una (H.P.) to back side of IPH office after wrapping the dead body in blanket and placing the dead body in gunny bag in presence of Darshan Singh, Ram Deen, Piara Singh, Tarsem and Maan Singh home guards who were on 24 hours patrolling duty inside and outside sub jail Una (H.P.) and prosecution did not record their statements in present case in order to complete chain of circumstantial evidence against accused persons.
20. Submission of learned Additional Advocate General appearing on behalf of the State that as per testimony of P.W. 16 Mela Ram on the concept of last seen theory both appeals filed by the appellants be dismissed is rejected being devoid of any force for the reason hereinafter mentioned. As per prosecution story deceased Ashok Kumar was murdered on dated 24.8.2002 after 7 PM in the meeting room of Sub jail Una (H.P.) by co-accused Amrish Rana and proclaimed offender Gurjant Singh and thereafter the dead body of deceased Ashok Kumar was kept in a wooden box which was kept in the meeting room of Sub jail Una (H.P.). As per further prosecution story on dated 24.8.2002 P.W. 16 Mela Ram personally saw the dead body of deceased Ashok Kumar in the wooden box which was kept in the meeting room of Sub jail Una (H.P.). But w.e.f. 24.8.2002 to 5.9.2002. P.W. 16 Mela Ram did not file any FIR against accused persons despite the fact that on dated 24.8.2002 P.W. 16 Mela Ram was on official duty in Sub jail Una (H.P.). Plea of the prosecution that P.W. 16 Mela Ram did not file FIR due to fear and due to advice of co-accused Tara Chand cannot be accepted because P.W. 16 Mela Ram was major at the time of incident and he was under legal obligation to file FIR immediately being public servant and being posted in Sub jail Una (H.P.) at the relevant time as Santri. We are of the opinion that public official is under legal obligation to discharge the public duty properly and efficiently. It is proved on record beyond reasonable doubt that at the time of alleged incident of murder co-accused Amrish Rana and proclaimed offender Gurjant Singh were in judicial custody and we are of the opinion that persons who are in judicial custody and who are under constant surveillance of police officials 24 hours were not in a position to give sufficient threat to P.W. 16 Mela Ram to kill him. Prosecution did not examine any independent corroborative eye witness in order to prove that co-accused Amrish Rana and proclaimed offender Gurjant have threatened P.W. 16 Mela Ram. No explanation has been given by prosecution as to how co-accused Amrish Rana and proclaimed offender Gurjant Singh have threatened P.W. 16 Mela Ram when both were in judicial custody in triple murder case and when both were in 24 hours surveillance of home guards and jail officials who were posted in sub jail Una (H.P.) at relevant time. We are of the opinion that P.W. 16 Mela Ram was under legal obligation to file FIR immediately against co-accused Amrish Rana and proclaimed offender Gurjant Singh on dated 24.8.2002. Even statement of P.W. 16 Mela Ram was recorded on dated 5.9.2002 and thereafter supplementary statement of P.W. 16 Mela Ram was recorded on 1.10.2002 and thereafter statement of P.W. 16 Mela Ram was recorded on 21.10.2002 under Section 164 Cr.P.C.. There is material improvement in the statement of P.W. 16 Mela Ram recorded on different dates. We are of the opinion that it is not expedient in the ends of justice to convict the appellants simply on the testimony of P.W. 16 Mela Ram because P.W. 16 Mela Ram has not personally saw co-accused Amrish Rana and proclaimed offender Gurjant Singh killing deceased Ashok Kumar with his own eyes because P.W. 16 Mela Ram was not present inside the meeting room of Sub jail Una (H.P.) at the time of incident and as per prosecution story incident of murder took place inside the meeting room situated in Sub jail Una (H.P.) on dated 24.8.2002 after 7 PM/7-15 PM. Even as per testimony of P.W. 5 Dina Nath, P.W. 6 Kapil Dogra, P.W. 8 Sat Parkash, P.W. 9 Subhash Chand, P.W. 10 Avtar Singh, P.W. 11 Kamaljeet, P.W. 19 Rikhi Ram and P.W. 23 Rajesh Kumar the chain of circumstantial evidence as alleged by the prosecution are broken.
21. Another submission of learned Additional Advocate General appearing on behalf of the State that accused persons Amrish Rana and proclaimed offender Gurjant Singh transported the dead body from meeting room of Sub jail Una (H.P.) to a river at a distance of 40 KM and on this ground appeals filed by the appellants be dismissed is also rejected being devoid of any force for the reason hereinafter mentioned. It is proved on record that seven to eight persons were posted in Sub jail Una (H.P.) at the time of alleged incident. It is well settled law that accused persons who were in judicial custody could not go out of the jail premises and accused persons were kept in prison room. No explanation has been given by prosecution as to how co-accused Amrish Rana and proclaimed offender Gurjant Singh took the dead body of deceased Ashok Kumar from meeting room of Sub jail Una (H.P.) in the presence of seven to eight police officials who were on duty on dated 24.8.2002 and 25.8.2002. We are of the opinion that it is improbable to carry the dead body of deceased Ashok Kumar in a gunny bag from jail premises in the presence of five to seven jail officials who were on 24 hours surveillance duty inside and outside jail premises in Sub jail Una (H.P.). Even as per testimony of P.W. 4 Prabhat Chand Assistant Superintendent Sub jail Una (H.P.) keys of lock up gate should remain with Assistant Superintendent Jail as per Police Act and as per H.P. Jail Manual. We fail to understand how co-accused Amrish Rana and proclaimed offender Gurjant Singh carried the dead body of deceased Ashok Kumar in a gunny bag from the meeting room of jail premises when there was surveillance in outer and inner gates of sub jail Una (H.P.) continuously 24 hours.
22. Submission of learned Additional Advocate General that both accused persons Amrish Rana and proclaimed offender Gurjant Singh during the mid night broken the iron windows of bath room and thereafter fled from the window of bath room and thereafter transported the dead body to a river on scooter and on this ground appeals filed by appellants be dismissed is also rejected being devoid of any force for the reason hereinafter mentioned. As per prosecution story P.W. 5 Dina Nath had conducted welding work of the window of Sub jail Una (H.P.) but when P.W. 5 Dina Nath appeared in the witness box he has stated that he did not conduct welding work of the strip of iron window in Sub jail Una (H.P.). P.W. 5 Dina Nath has stated that he had conducted welding work of the main gate only. The testimony of P.W. 5 Dina Nath is hostile to the prosecution.
23. Another submission of learned Additional Advocate General appearing on behalf the State that as per disclosure statement Ext PE given by co-accused Amrish Rana placed on record appeals filed by the appellants be dismissed is also rejected being devoid of any force for the reason hereinafter mentioned. We have carefully perused the disclosure statement Ext PE of co-accused Amrish Rana recorded under Section 27 of the Evidence Act. The marginal witnesses of disclosure statement Ext PE are P.W. 10 Avtar Singh and Hoshiar Singh. We have carefully perused the testimony of P.W. 10 Avtar Singh. P.W. 10 has specifically stated in positive manner that no disclosure statement was given by co-accused Amrish Rana in his presence. P.W. 10 has specifically stated that co-accused Amrish Rana did not give any statement in his presence that dead body of deceased Ashok Kumar was wrapped in a blanket and kept in a wooden box in Sub jail Una (H.P.). P.W. 10 Avtar Singh has specifically stated in positive manner that co-accused Amrish Rana did not give any disclosure statement in his presence that co-accused Amrish Rana had kept the dead body behind the IPH building between the Coolers at night and P.W. 10 has specifically stated that co-accused Amrish Rana did not give any disclosure statement in his presence that he carried the dead body of deceased Ashok Kumar on scooter No HP 22-8137 to a river. In view of above stated facts we are of the opinion that disclosure statement of co-accused Amrish Rana is not helpful to prosecution.
24. Another submission of learned Additional Advocate General appearing on behalf of the State that on the basis of statement of P.W. 16 Mela Ram recorded under Section 164 Cr.P.C. by Additional Chief Judicial Magistrate Una (H.P.) both appeals filed by the appellants be dismissed is also rejected being devoid of any force for the reason hereinafter mentioned. We have carefully perused the statement of P.W. 16 Mela Ram recorded by Additional Chief Judicial Magistrate Una (H.P.). Learned Additional Chief Judicial Magistrate has not recorded the statement of P.W. 16 Mela Ram on oath. It is well settled law that any statement recorded without oath by Judicial Magistrate can be used only for corroborative and contradiction purpose only and cannot be used as substantive evidence for conviction. It is held that as the statement of P.W. 16 Mela Ram was recorded by Additional Chief Judicial Magistrate Una (H.P.) without oath hence the same is not sufficient to convict the appellants in criminal case of murder and same can be used to contradict witness in the manner as provided by Section 145 of Indian Evidence Act 1872.
25. Another submission of learned Additional Advocate General appearing on behalf of the State that disposable syringe were collected from the meeting room of Sub jail Una (H.P.) where the dead body of deceased Ashok Kumar was kept in a wooden box by accused persons and on this ground appeal filed by the appellants be dismissed is also rejected being devoid of any force for the reason hereinafter mentioned. There is no evidence on record in order to prove that finger prints of accused persons were available upon disposable syringe. We are of the opinion that accused persons are not connected with the use of disposable syringe in the commission of offence of murder beyond reasonable doubt.
26. Another submission of learned Additional Advocate General appearing on behalf of State that on the basis of photographs placed on record appeals filed by appellants be dismissed is also rejected being devoid of any force for the reason hereinafter mentioned. We have carefully perused the testimony of P.W. 11 Kamaljit photographer who has specifically stated that he took the photographs of ventilator of Sub jail Una (H.P.) Ext P11 to Ext P13. P.W. 11 Kamaljit has specifically stated that the negatives of photographs placed on record are not negatives of photographs Ext P11 to Ext P13. It is well settled law that photographs are not admissible in evidence unless negatives photographs are placed on record. In view of the fact that negative photographs Ext P11 to Ext P13 are not placed on record we are of the opinion that photographs Ext P11 to P13 could not be read in evidence.
27. Submission of learned Additional Advocate General appearing on behalf of State that deceased Ashok Kumar was killed by co-accused Amrish Rana in meeting room of Sub jail Una (H.P.) and after killing deceased Ashok Kumar his dead body was kept in a wooden box which was kept in the meeting room of Sub jail Una (H.P.) and on this ground appeals filed by appellants be dismissed is also rejected being devoid of any force for the reason hereinafter mentioned. We are of the opinion that as per Prison Act and jail manual no outsider could visit in jail premises without entry in the visitor register. Prosecution did not prove on record that name of deceased Ashok Kumar was entered in the visitor register of sub jail Una (H.P.) on dated 24.8.2002. There is no entry in sub jail Una (H.P.) regarding deceased Ashok Kumar in order to prove that deceased came to meet co-accused Amrish Rana and proclaimed offender Gurjant Singh in sub jail Una (H.P.) We are of the opinion the chain of meeting of deceased Ashok with co-accused Amrish Rana is broken by way of non-entry of deceased Ashok Kumar in visiting register of sub jail Una (H.P.). It is proved on record that at the time of alleged incident of murder co-accused Amrish Rana was in judicial custody. As per Prison Act and as per H.P. Jail Manual admission of outsider to meet with accused who is in judicial custody is always with the permission of Superintendent or Assistant Superintendent. In the present case there is no evidence on record that P.W. 19 Rikhi Ram who was officiating Superintendent of sub jail Una (H.P.) has given permission to deceased Ashok Kumar to meet co-accused Amrish Rana and proclaimed offender Gurjant Singh in the meeting room of sub jail Una (H.P.)on dated 24.8.2002 in the meeting room. Non entry of deceased Ashok Kumar in the visitor register regarding meeting with co-accused Amrish Rana in Sub jail Una (H.P.) on dated 24.8.2002 has created doubt in the mind of Court qua commission of criminal offence as alleged by the prosecution.
28. Another submission of learned Additional Advocate General appearing on behalf of the State that co-accused Amrish Rana was taken out of jail premises in order to meet the call of nature because the toilets situated in jail premises was out of order and was chocked and on this ground appeals filed by appellants be dismissed is also rejected being devoid of any force for the reason hereinafter mentioned. We are of the opinion that as per Prison Act and as per HP Jail Manual no prisoner lodged in the jail could be taken out of the prison cell and outside main gate of jail without prior written permission of Superintendent or Assistant Superintendent of Jail. In the present case there is no evidence on record in order to prove that prior permission of officiating Superintendent sub jail Una (H.P.) namely P.W. 19 Rikhi Ram was obtained on dated 24.8.2002 to take out co-accused Amrish Rana and proclaimed offence Gurjant Singh outside the main gate of jail premises to meet call of nature of accused persons. Even Sweeper posted in jail premises did not state that the toilet in the jail premises was chocked on dated 24.8.2002. Even as per prosecution story the incident took place at 7.15 PM and as per Prison Act and HP Jail Manual all the prisoners are taken out from prison cell after sun rise in the presence of Superintendent or Assistant Superintendent jail and are lodged in the prison cell before sun set in the presence of Superintendent or Assistant Superintendent of sub jail Una (H.P.). The above stated facts cast doubt in the prosecution story in the present case. Even as per duty chart Ext P3 placed on record many persons were posted in Sub jail Una (H.P.) on dated 24.8.2002 and 25.8.2002 and as per prosecution story co-accused Amrish Rana and proclaimed offender Gurjant Singh have murdered deceased Ashok Kumar in the meeting room of jail premises on dated 24.8.2002 but till 2.9.2002 no FIR was lodged by any official of jail premises qua murder of deceased Ashok Kumar which creates doubt in the mind of Court. Even as per prosecution story the dead body of deceased Ashok Kumar was lifted from the meeting room of jail premises to a river which was situated at a distance of 40 Km from jail premises despite the fact that many jail officials were posted in sub jail premises Una (H.P.). The fact that co-accused Amrish Rana and proclaimed offender Gurjant Singh succeeded in taking out the dead body of deceased Ashok Kumar from jail premises despite twenty four hours surveillance inside and outside jail premises creates doubt in the mind of Court qua story as alleged by prosecution. Even as per document Ext P3 passing in and out of jail gates placed on record the name of co-accused Amrish Rana and proclaimed offender Gurjant Singh did not figure for passing out of jail premises in order to meet call of nature which also creates doubt in the mind of Court. Even on dated 24.8.2002 the sun rises at 5.56 AM and set at 6.51 PM. We are of the opinion that no jail official has a right to keep under trial prisoner out of the prison cell after sun set except with the prior written permission of Superintendent or Assistant Superintendent of Jail as per law. No plausible explanation has been given by the prosecution as to how co-accused Amrish Rana and proclaimed offender Gurjant Singh succeeded to take out the dead body of deceased Ashok Kumar from the meeting room of jail premises despite the fact that many persons were on patrolling duty inside and outside the jail premises continuously for 24 hours as per Prison Act and as per HP Jail Manual.
29. Another submission of learned Additional Advocate General appearing on behalf of the State that hairs were collected from the meeting room of Sub jail Una (H.P.) where dead body of deceased Ashok Kumar was found and on this ground appeals filed by appellants be dismissed is also rejected being devoid of any force for the reason hereinafter mentioned. We have carefully perused Chemical Analyst report Ext. P.W. 26/F placed on record. There is no mention in the report of Chemical Analyst that human hairs found in the meeting room of Sub jail Una (H.P.) wherein the dead body of deceased Ashok Kumar was kept tallied with the hairs of accused persons. Chemical Analyst has not mention in his report that he has compared the hairs collected from the meeting room of Sub jail Una (H.P.) with the hairs of accused persons. We are of the opinion that it is not expedient in the ends of justice to convict accused persons on the basis of defective chemical analysis report.
30. Another submission of learned Additional Advocate General appearing on behalf of State that criminal offence was committed inside sub jail Una (H.P.) on dated 24.8.2002 and 25.8.2002 due to criminal conspiracy between co-accused Amrish Rana and proclaimed offender Gurjant Singh and co-accused Tara Chand, who was warder of sub jail Una (H.P.) and on this ground both appeals be dismissed is rejected being devoid of any force for the reasons hereinafter mentioned. Learned trial Court acquitted co-accused Tara Chand under Sections 120-B, 302, 201, 218 and 222 IPC. State of H.P. did not file any appeal against co-accused Tara Chand before High Court of H.P. against acquittal under Sections 120-B, 302, 201, 218 and 222 IPC as mentioned under Section 378 of Code of Criminal Procedure. Similarly learned trial Court acquitted co-accused Bhim Singh, Sandeep Kumar and Sunil under Section 223 IPC and State of H.P. did not file any appeal against acquittal under Section 378 of Code of Criminal Procedure 1973. We are of the opinion that even as per judgment of learned trial court criminal conspiracy between co-accused Amrish Rana and proclaimed offender Gurjant Singh and co-accused Tara Chand is not proved on record. It is held that even as per judgment of learned trial Court complete chain of circumstantial evidence qua criminal conspiracy between co-accused Amrish Rana and proclaimed offender Gurjant Singh and co-accused Tara Chand is broken. We are of the opinion that it is not expedient in the ends of justice to affirm judgment and sentence passed by learned trial Court against appellants on the basis of broken chain of circumstantial evidence.
31. Case of the prosecution is based upon circumstantial evidence and last seen theory. It was held in case reported in
32. In view of the above stated facts it is held that learned trial Court has not properly appreciated oral as well as documentary evidence placed on record while convicting appellants. We accept both appeals (Criminal Appeal No. 423 of 2007 titled Tara Chand v. State of HP and Criminal Appeal No. 476 of 2007 titled Amrish Rana v. State of HP) filed by the appellants and we set aside the judgment and sentence imposed by learned trial Court under Section 302 IPC read with Section 120-B IPC upon co-accused Amrish Rana. We also set aside the judgment and sentence imposed by the learned trial Court under Section 202 IPC upon co-accused Tara Chand. We acquit co-accused Amrish Rana of the offence punishable under Section 302 IPC read with Section 120-B IPC by way of giving him benefit of doubt. We also acquit co-accused Tara Chand of the offence punishable under Section 202 IPC by way of giving him benefit of doubt. Certified copy of the judgment be placed in Criminal Appeal No. 476 of 2007 titled Amrish Rana v. State of HP. Bail bonds and surety bonds furnished by the appellants are discharged. Appellants be released forthwith if not required in any other criminal case. Both appeals are disposed of. Pending application(s) if any are also disposed of.
