Singha Vs. State of Himachal Pradesh  INSC 514 (9 April 1996)
K. (J) Venkataswami K. (J) Verma, Jagdish Saran (J) Bharucha S.P. (J)
JT 1996 (4) 53 1996 SCALE (3)346
APPEAL NO.186 OF 1988 State of Himachal Pradesh V Rakesh Malik & Others
APPEAL NO. 187 OF 1988 Rakesh Malik V State of Himachal Pradesh
CIVIL APPEAL NOS. 6303-6308 OF 1994 Shri Rakesh Singha V. Shri Vikram Anand
CIVIL APPEAL NO. 7232 OF 1994 Shri Harbhajan Singh Bhajji V. Shri Rakesh Singha
Appeal Nos.185 to 187 of 1988:
above three Criminal Appeals arise out of a judgment and order in Criminal
Appeal No.42 of 1979 on the file of the High Court of Himachal Pradesh dated
appellants in Criminal Appeal Nos, 185 and 187 of 1988 were convicted by the
learned trial Judge under Sections 148, 452, 427 and 325 read with Section 149
the learned Sessions Judge dealt with the convicted accused under Section 360
of the Criminal Procedure Code and instead of sentencing them to any punishment
directed them to be released on their entering into a bond in the sum of rupees
ten thousand with one surety for the like sum in each case undertaking to
appear and receive sentence when called upon during a period of 2 years from
the date of judgment and in the meantime to keep peace and be of good behaviour.
State aggrieved by the judgment of the learned Sessions Judge preferred appeal
to the High Court. On appeal, the High Court enhanced the sentence of the
accused/appellants to rigorous imprisonment for a period of five years under
Section 304 Part (II) read with Section 149 I.P.C. It also awarded sentence of
R.I. for a period of three years for offences under Sections 325, 452 read with
Section 149 IPC.
further they were sentenced to undergo R.I. for two years under Section 148
IPC. All the above sentences were directed to run concurrently. The State still
aggrieved has filed Criminal Appeal No.186 of 1988 seeking further enhancement
of sentence as well as for conviction of some other accused persons.
stated, the facts are as under ;
On May 10, 1978 one Harnam Dass (P.W. 7) celebrated
his daughter's marriage at his house (Alfin Lodge) in Simla.
registration No. HPN 102 belonging to Harnam Dass was parked on the road just
ahead Of his house. P.W.3 Shakti Ram was the driver who found two boys
(university students) pushing the jeep and third one sitting on the steering
trying to start the vehicle. When the driver questioned the boys, they started
abusing him and threatened to assault.
driver went down towards Alfin Lodge and returned with Rakesh (P.W.4) who is
the son of Harnam Dass. On questioning the boys for interfering with the jeep,
he was also abused and when Rakesh shouted for help, the boys left the jeep and
went away. While going they shouted that they would soon teach them a lesson. Rakesh
informed about this incident to P.W.2 Dharam Pal who was then working as
Additional District & Sessions Judge, Kangra who brought the matter to the
notice of P.W. 7 Harnam Dass and also rang up the Police Station for Police
protection. The Station House Officer by name Pritam Singh (P.W.35) with police
party reached Alfin Lodge in a Police Van and police party was also there till
about 1.30 A.M. on 11.5.1978 when the marriage
party and the bride departed. Thereafter the police party left the place
leaving one Head Constable and one Constable at Alfin Lodge on the suggestion
of Dharam Pal. About 8 or 9 persons from Bride's side had yet to take their
means which was ordered to be served. At that time Dharam Pal saw about 20-25
boys rushing towards the main gate of Alfin Lodge. The distance between the
main gate of the Alfin Lodge and the place where Dharam Pal and others were
sitting and waiting for meals to be served was about 50 ft. Dharam Pal on
seeing the boys proceeded towards them with the intention to persuade and stop
them from entering the Shamiana. He even disclosed his identity thinking that
they night show some respect. The boys were armed with various types of weapons
like. hockey sticks, iron rods, iron chains, dandas, empty bottles etc.
Kumar, P.W. 9 who is the bride's brother followed Dharam Pal and some other men
folk also came there. The appellant in Criminal Appeal No.187 of 1988
questioned the men folk present then as to who had removed his boys from the
jeep. While they were talking, the appellant in Criminal Appeal No.187 of 1988
gave a hockey blow aiming at the head of Naresh Kumar which the latter received
on his left forearm resulting in a fracture of his ulna bone. Then it is stated
the said appellant instigated the other boys to attack and kill one and all
persons is resulted in indiscriminate beating which lasted for about 10 minutes.
the situation going out of control, Dharam Pal once again rang up the police
station and apprised the police of the happening there and requested for
immediate police assistance. On coming to know of these the boys retreated.
going back they threw stones on the building thereby breaking some window
panes. They also broke the flood light which had been installed on the katcha
approach road. In the incident, Dharam Pal, Naresh, Vidyasagar, Rakesh, Romesh,
Omesh and the deceased Suresh had all received various injuries at the hands of
the boys. About 20 s minutes later.
S.H.O. Pritam Singh accompanied by a police force reached the place and
immediately sent the injured persons except Dharam Pal and Omesh to Ripon
Hospital, Shimla in the police van for their medical examination and treatment.
He immediately inspected the spot and started recording statements of P.W.2 Dharam
Pal under Section 154 Cr.P.C.
recording the statements, the same were sent to the Police Station for
registration of the case. Initially the case was registered under Sections 147,
148, 149, 452, 427 and 323 IPC. Later on as one of the injured namely Suresh,
succumbed to the injuries. charges under Sections 325, 307 and 302 IPC were
also added. The S.H.O. during investigation took into possession a hockey
stick, two broken pieces of cricket wicket , a wrist watch which had fallen
from the wrist of Dharam Pal, a broken piece of a bottle. a piece of wood, some
stones and some broken window Panes from the spot. He also took into possession
the shirt of Ramesh which was besmeared with blood.
to this, the Police could round up only 14 of the boys who were involved in the
incident. Some of them were arrested on 12.5.1978 and others were arrested on
15th May, 22nd May and 29th
May, 1978. While in
the police custody, Hukam Chand, Chuni Lal and Chain Ram made statements under
Section 27 of the Evidence Act in pursuance of which the Police recovered an
iron chain, a broken leg of a chair and an iron rod said to have been used in
the course of the incident. On being sent for chemical analysis they were found
stained with human blood. Stomach contents of deceased Suresh along with
portions of liver, one kidney and spleen as well as samples of blood and urine
were also sent for chemical analysis and as per the information of the chemical
examination, blood alcohol concentration to the extent of 86 mg. per 100 ml was
detected and presence of alcohol was confirmed by the stomach contents
recovered, kidney, spleen and urine of the deceased. The 14 boys except Kahan
Singh Dagar who were arrested were challaned to the Court of the Chief Judicial
Magistrate, Shimla who committed all of them to face trial in the Sessions
Court for offences under Section 147, 148, 149, 452, 427, 323, 325, 353, 307,
302 and 201 IPC.
accused Kahan Singh Dogra was discharged under section 227 Cr.P.C.
the accused were sent to the Sessions Court to face the trial as they pleaded
not guilty. The common plea of the accused persons was that they were not
present at the time of alleged occurrence and they have been falsely implicated
in this case. The learned Sessions Judge after going through the oral evidence
of PWs and the documentary evidence produced by the prosecution and also the
statements of the accused under section 313 Cr.P.C. found that seven out of
thirteen who faced the trial. namely, Mehar Singh, Hardev Singh, Arun Mahajan, Pratap
Singh, Jagrup Singh Chaudhry, Rajender Chauhan and Prem Nath had not committed
any of the offences charged against them and consequently acquitted all these
seven persons under section 232 Cr.P.C. The balance six of the accused were
called upon to enter their defence.
the witnesses listed by the accused were summoned, the accused persons did not
avail the opportunity of examining them.
hearing the arguments of the counsel for the prosecution and the defence the
learned Sessions Judge by Order dated 4.10.78 convicted the appellant in Crl.
Appeal No. 185 & 187 of 1988 (appellants in Crl. A. No. 185 & 197/88)
only for offences punishable under sections 148, 452, 427 and 325 read with 149
IPC. However as mentioned above, they were released on their entering bonds for
a sum of Rs. 10,000/- with one surety for the like sum and also undertakings
during a period of two years from the date of the judgment and keep peace in
the meantime and be of good behaviour.
appeal by the State of Himachal Pradesh, the High Court for reasons stated in
the judgment under appeal while confirming the convictions of the appellants in
Crl. A. No. 185 & 187 of 1988 sentenced them by imposing various terms of
imprisonment to be run he gave only the surname. The trial court acquitted four
other co-accused as it was not prepared to accept the evidence of PW 9 with
regard to those four accused persons' identification. Likewise, applying the
same reasoning, the contention is, that the courts should have rejected the
evidence of SW 9 in respect of the appellant's identification as well. In any
case, according to the learned counsel, that there was no intention to cause
grievous injury much less one of death is obvious from the fact of the weapon
used in the attack. The High Court was not justified, according to the learned
counsel, in converting the offence from the one under Section 352 to another
under Section 304 Part II on the facts of this case and, therefore, the
enhancement of sentence and that too after eight years of the occurrence and
the appellant having served the punishment imposed by the trial court is not
these grounds, the learned counsel argued that the appeal should be allowed.
learned counsel for the appellant in Crl. A.No.187/88 contended that the
appellant's name did not find a place in the First Information Report and the
evidence, read as a whole, does not establish the case to be against the
appellant and that the identity was not established beyond doubt. He particularly
. our attention to the fact that PW2, Dharam Pal did not testify? the crucial
fact that the deceased received any injury at all. According to him, this vital
factor escaped attention of the trial court as well as the High Court. He built
up his argument further by contending that having regard to the post-mortem
report, the deceased could have died on account of fall as a result of excessive
dratting and that is why PW-2 did not to testify/to the alleged injury received
by the deceased at the hands of the accused. It was also argued that the
accused has since well settled in life and if he is asked now to undergo the
remaining part of imprisonment, that will spoil his career particularly when
during all these years the appellant has not given any room for a complaint.
as the appeal filed by the State is concerned namely Crl A. No. 186/88, no one
was present to argue the appeal. However, we have considered the grounds raised
in the Special leave petition and it will be dealt with at the appropriate
have considered the submissions of the learned counsel appearing for the
appellant in Criminal Appeal Nos.185/88 and 187/88. After carefully going
through the judgments of the Sessions Court and the High Court, we are unable
to pursued ourselves to accept the contentions raised by the learned counsel
for the appellants in Criminal Appeal Nos. 185/88 and 187/88. Not only for the
reason that the findings are concurrent but also for the reason that the
findings of the courts are well-considered, well supported and well-founded we
find that there is no scope for interference either with the conviction or with
the enhancement of sentence awarded by the High Court.
have seen the root cause for the incident was the meddling with jeep by the
college students. Though the prosecution presented the case as if nothing more
than an altercation took place in connection with the jeep incident, the
learned Sessions Judge on the basis of evidence of PW 10 was right in finding
that the accused Kedar Singh and Rakesh Singha (appellant in Crl. A. No.
185/88) were beaten and humiliated by certain persons belonging to Alfin Lodge.
He was also right in observing that as a result of such manhandling of the
above said accused, the students later assembled and decided to take revenge.
Otherwise there was no good reason for P.W.2 Dharampal to seek police
protection during the marriage ceremony that was to take place in the night of
10th May, 1978. Proceeding further, we find that after the main incident at the
Alfin Lodge and on the basis of FIR given by P.W.2 Dharampal, 14 boys were
arrested out of which one Kahan Singh Dogra was discharged under section 227 of
Cr.PC. Later 7 were acquitted under section 232 Cr.P.C. and only six were
called upon to enter on their defence by the learned Sessions Judge. Even among
the Six, after the trial, the learned Sessions Judge convicted only the two
accused appellants before us and acquitted the rest.
stated above, on appeal both by the accused/appellants and the State, the High
Court while confirming the conviction of appellants before us and acquittal of
four others, enhanced the sentence imposed on the accused appellants. This only
shows that the courts have carefully weighed the evidence and have not accepted
the same in its entirety as presented by the prosecution.
as the accused appellants are concerned, the main arguments, as we have seen
earlier, are regarding their identity, involvement in the main incident that
took place at Alfin Lodge and the credibility of evidence tendered by PW 9.
Other contention seriously pressed was that the appellant in Criminal Appeal
No.187 of 1988 contended that the name of the appellant did not appear in the
F.I.R. and the inclusion at the subsequent stage was an after-thought.
argument advanced was that both the accused appellants have well-settled in
life and at this distance of time, this Court will take note of that fact and
if this court confirms the sentence imposed on the accused appellants that will
spoil their career. So far as the main incident that toot place at the Alfin
Lodge is concerned, that has been well-established beyond doubt by the
prosecution witnesses 2, 4, 5, 7, 8, 9 and 20 and, therefore, that was not
now to the identity of the appellants, the High Court rightly accepted the
evidence of PW 9 and found as follows:
learned Sessions Judge has given formidable reasons in support of his findings
that there can be hardly any doubt about the involvement of Rakesh Malik and Rekesh
Singha. We do not think there is any good reason to take a different view of
this point. PW 9 Naresh Kumar, Advocate, had met both of these accused earlier.
It was he who had kept one of his hand on Rakesh Malik's shoulder at the place
of the main occurrence and had addressed him; "Malik, kia bat hai?".
Accused Rakesh Malik, however directed a hockey stick on Naresh Kumar's head
which the latter warded off by his left fore- arm resulting in fracture of unla-
bone, which fact is borne out by the medical evidence. That PW 9 Naresh Kumar
had so addressed accused Rakes Malik before the members of the unlawful
assembly started inflicting injuries to whosoever came in their way is borne
out from the testimony of other eyewitnesses as well. PW 4 Rakesh Sood, PW 5 Ramesh
Sood and PW 20 Vidya Sagar, Advocte, have identified Rakesh Malik in the Court.
Even if much weight is not attached to such identification, there is no reason
at all to disbelieve the testimony of PW 9 Naresh Kumar who has come out
totally unscathed in his cross- examination as far as the identification of Rakesh
Malik and Rakesh Singha is concerned. PW 11 Chet Singh has deposed that he alongwith
other University students after hearing that some of the students had been
beaten and were lying by the side of the road, had proceeded to the place where
jeep and been parked. He saw accused Kedar Singh and Rakesh Singha Iying on the
roadside at a distance of about 10 paces from the dhaba being run by PW 10 Raj
Kumar. PW Raj Kumar had then told them that Rakesh Singha and Kedar Singh had a
quarrel with some members of the marriage party. This part of his testimony has
not been challenged in the cross-examination which establishes the involvement
of these two persons in the jeep incident. PW 10 Raj Kumar was declared hostile
and his demeanor in the witness box was noted by the learned Sessions Judge
with observations that he was trying to act in an over-clever manner and was
forestalling the questions put to him and was volunteering replies even before
the questions were complete. Even this witness identified accused Kedar Singh
being involved in the jeep incident though he denied having made a statement
before the police that Kedar Singh had told him about Rakesh Singha having
misbehaved with the driver under the influence of liquor . Thus, i t stands
proved beyond reasonable doubt that accused Rakesh Malik and Kedar Singh were
two persons out of the three who had tried to drive away the jeep. As regards
the identication of the culprits at the time of main occurrence which took
place at about 1 a.m., it is writ large on the statements of eye- witnesses in
this case that none of them had a desire to implicate anyone falsely
Cumulatively, therefore, we are in entire agreement it with the learned
Sessions Judge about the identity of accused Rakesh Malik and Rakesh Singha
having been fully established." After going through the evidence, we do
not find any good ground to take a different view. Regarding the argument that
the name of the appellant in Criminal Appeal No. 187/88 did not find a place in
FIR given by PW 2 Dharampal, we do not find that there is any lacunae in that.
PW 20 in his deposition has stated as follows:
was no visible injury mark on the person of Suresh when he accompanied us to
our medical examination in the Hospital, Suresh first complained that two of
fingers of his hand had become numb and then he complained that he was feeling
as if his right side was being paralyzed. The doctor then started examining
Suresh and also inquired from him it he had received any injury. Suresh could
not reply by mouth but he pointed out towards his head by his hands. The doctor
wanted Suresh to sign some papers but Suresh was unable to sign his name. It
was at about 5.45 or 6 AM when Suresh complained of his troubles. Soonafter he
became unconscious. He was therefore, detained in the Hospital and the rest of
us returned to Alfin Lodge in the same Van. About fifteen minutes later we
received a telephonic message that the condition of Suresh had grown very
serious and he was being removed to Snowdon Hospital. On receipt of that
information some of us went to Snowdon Hospital. Suresh could not recover and
expired in the early hours of 12th May." As a matter of fact, it appears
from the evidence that the deceased Suresh was in fact helping the other
injured persons at the Alfin Lodge in taking them to hospital and that was the
reason for PW 2 not mentioning Suresh as one of the injured in the FIR.
Therefore it was quite in accord with the evidence of P.W.20. Another argument
advanced by the learned counsel for the appellant in Criminal Appeal No.187/88
was that having regard to the post-mortem report of the deceased Suresh, it was
suggested that the injuries could have been caused on account of the fall due
to effect of alcohol. This argument is stated to be rejected only as the
evidence shows that the deceased was helping other injured persons to be taken
to hospital and only at the hospital he suddenly developed numbness and became
unconscious. The last argument concerning the accused appellants that during
the pendency of the appeal they having well-settled in life should not be asked
to go to prison by confirming the sentence is not acceptable to us on the facts
of this case. We have seen that the accused appellant along with number of
others armed with hockey sticks, iron chains etc. attacked the aged, defenceless
persons indiscriminately including women and children completely turning the
happy marriage occasion to one of mourning. On the facts, we are satisfied that
the High Court was justified in enhancing the sentence and there is no case for
interference on any account.
coming to the appeal preferred by the State (Criminal Appeal No. 186/88) we do
not find any merit in the appeal. The High Court was right in altering the
conviction from one under S. 302 to S. 304 Part II having regard to the to act
that the death occurred after 24 hours of inflicting injury and also the type
of weapon used or causing the injury. We do not think that there is any case
for further enhancing the sentence. For the foregoing reasons, we dismiss all
the three appeals.
Appeal Nos. 6303-05 of 1994 & 7232 of 1994 All these appeals arise out of a
common judgement and order of the High Court of Himachal Pradesh in Election
Petition Nos.1/94, 4/94 and 5/94 dated 13.9.94. The appellant in C.A. No.
6303-05/94 was elected to the 8th Assembly Constituency, Himachal Pradesh in
the elections held on 9.11.93. It may be mentioned that the appellant who is
the appellant in Criminal Appeal No.185/88. filed his nomination paper during
the pendency of the said appeal in this Court after obtaining suspension of the
sentence imposed on him by the High Court. His nomination was objected to by
the election petitioners. On the basis of the order of suspension of sentence
by this Court his nomination was accepted and he was declared elected on
his election three election petitions were filed in the Himachal Pradesh High
Court. The High Court took the view that suspension of sentence Will not
automatically result in suspension conviction. therefore, the acceptance of the
nomination was illegal. The High Court said as follows :
result of the above discussion is that the election of Sh. Rakesh Singha is
void as the result of his election has been materially affected by the improper
acceptance of his nomination. He is disqualified to be chosen to fill the seat
of 8-Shimla Assembly.
having been convicted and sentenced to imprisonment for a period of more than
two years by judgment dated 25.9.87 in Crl.
No. 42 of 1979 passed by this Court. The order dated 10.1.89 and 2.2.90 passed
by the Supreme Court, releasing Sh. Rakesh Singha on bail. resulting in the
suspension of sentence imposed upon him, do not arrest the disqualification
which was in operation on the date of scrutiny of his nomination under Section
36 of the Act and also continues to be in operation when these election
petitions are being decided." Challenging the above decision of the High
Court. the appellant has filed Civil Appeal No. 6303-05/94. Civil Appeal No.
7232/94 is preferred by the appellant who was a candidate defeated in the
election and being aggrieved in not getting & declaration as elected in the
place of the first respondent in his Appeal (Rakesh Singha) even though he was
found to have secured next highest votes.
these appeals were heard along with Criminal Appeal Nos. 185. 186 and 187 of
1988. the counsel on both sides agreed that in the event of this Court
dismissing the Criminal Appeals, all the election appeals will also stand
dismissed and no separate argument was addressed. As we have dismissed the
criminal appeals, these civil appeals also stand dismissed. However. there will
be no order as to costs.