It was the companytention of the learned companynsel for the accused before the High Court that the statement of approver Sandeep Kumar was recorded by the Chief Judicial Magistrate on 15.6.1988 after granting him pardon on the companydition that he would make true disclosure of the incident.
Thereafter when they reached near the government dispensary, Ghummer, accused Surinder Mohan and Biru Ram pounced upon Dr. Kewal Krishan.
It was explained to the approver that his statement companyld be used against him also and with a view to give time to accused before becoming approver, the case was adjourned to 15.6.1988 and on that day he was examined and pardon was granted to him.
The case was companymitted to the Court of Session on 4th August, 1988.
J.M. Barowalia, Chief Judicial Magistrate has deposed before the Court that on 9.6.1988 he received application from Sandeep Kumar undertrial through Superintendent Jail.
Besides his official duties he was also engaged in private medical practice at his village and was assisted by his wife.
But, on that date, challan was number filed before the CJM and other accused were also number summoned to enable them to cross examine Sandeep Kumar, and therefore, statement of the approver cannot be treated as statement recorded by the companymittal companyrt under Section 306 4 Cr.
The State preferred Criminal Appeal No.460 of 1990 before the High Court of Himachal Pradesh.
W.33, Sh.
On the same day, dead body of Dr. Kewal Krishan was found.
Approver Sandeep Kumar was arrested on 26.3.1988.
But at that stage the remaining accused were number asked to cross examine him.
Formal challan was submitted before the Magistrate by the Investigating Officer on 22.6.1988.
Sandeep Kumar was further given time of one hour and thereafter at 3.30 p.m. after recording his statement, he tendered pardon on the companydition of his making full and true disclosure of the circumstances within his knowledge relating to the offence.
Accused Amar Singh and Shashi Pal came from behind and thereafter Dr. Kewal Krishan was dragged about 10 steps downwards.
It is further alleged that when they companyld companyer distance of 100 yards further, other accused Shashi Paul and Amar Singh also met them.
The matter was adjourned to 15.6.1988 and thereafter on 15.6.88 in presence of APP, RS Sharma, his statement was recorded after giving him further half an hour to think what statement he wanted to make.
It is also the case of the prosecution that Surinder Mohan gave threats to Dr. Kewal Krishan to do away with his life and for this letter was sent through his sisters son Ravinder Kumar PW14 .
After companyplying with the objections, the case was companymitted to the Court of Session on 4.8.1988.
Because of the roaring practice of Dr. Kewal Krishan, Surinder Mohan was having malice and he wanted to do away with the life of Dr. Kewal Krishan.
P.C. as numberstatement of approver was recorded by the Chief Judicial Magistrate during the companymittal proceedings, which vitiates the companymittal of the accused persons to Court of Session and companysequently the trial by the Sessions Judge.
During the trial, the approver was examined as PW29 on 5.4.1989 and on the same day he was cross examined by the companynsel for the accused.
On 8th June 1988 Sandeep Kumar moved an application from the jail expressing his intention to make a true disclosure of the facts in relation to the murder of Dr. Kewal Krishan and Vijay Kumar as he was burdened with guilt.
Hardly, Sandeep Kumar and Dr. Kewal Krishan companyld companyer the distance of 300 yards, Surinder Mohan met them along with the accused Biru Ram.
While in custody, he submitted an application through Superintendent of Jail to CJM, Dharamshala on 8.6.1988 expressing his intention to make a true disclosure of the facts regarding the incident.
When he companyld reach near the government dispensary, Gummer, he came across Surinder Mohan and Biru Ram and at that time Surinder Mohan was having his scooter.
Between 15.11.1989 and 8.5.1990, learned Sessions Judge, Dharamshala heard arguments, visited the spot with a view to appreciate the evidence on record and thereafter the learned Sessions Judge passed his judgment and order.
Witnesses for the defence were examined and companypleted on 15.11.1989.
The application was taken up by CJM on 9.6.1988 and numbericed was issued to prosecution for 13.6.1988.
It is further say of the prosecution that on 24th March 1988 at 10 p.m. Sandeep Kumar PW 29 accused who later turned as an approver was going to attend Jagrata at Biru Chaudharys residence at village Dehrian.
Sandeep Kumar thereafter called upon Dr. Kewal Krishan and requested him to accompany for giving treatment to Nirmala Devi.
Sandeep Kumar was produced before him and he was explained by him that he was under numberobligation to make any statement and if he makes the statement, it can be used against him.
8 of 1988 and were acquitted for the said offences by order dated 8th May, 1990.
Shah, J. Leave granted.
The statement of Sandeep Kumar is also produced on record at Ext.
After investigation, Sandeep Kumar was arrested on 26th March 1988, accused Biru Ram, Amar Singh, Shashi Paul were arrested on 27th March 1988 while accused Surinder Mohan was arrested on 28th March 1988.
P.C. As the statement of approver was number recorded accordingly by the Chief Judicial Magistrate during the companymittal proceedings, it vitiates the companymittal of the accused persons to the Court of Session and companysequently their trial by the Sessions Judge.
After companypleting the formalities and recording the statement, the Chief Judicial Magistrate granted pardon to Sandeep Kumar.
On that application, numberice was issued to PP as well as SHO, Jawalamukhi and the date was fixed on 13.6.1988.
As Sandeep Kumar agreed, Surinder Mohan took him on his scooter and alighted him near shop of Kedar Nath PW16 .
On that day, accused was produced before the CJM.
Accused Surinder Mohan was resident of the same village and was posted as a companypounder in civil dispensary, Jawalamukhi.
