IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 272 of 1997 Date of decision: 19.08.2010 ____________________________________________________________ The State of H.P. .....Appellant. Versus Brij Lal .....Respondent. Coram The Hon'ble Mr. Justice R.B. Misra,J. The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? ____________________________________________________________ For the appellant: Mr. Rajinder Dogra, Additional Advocate General with Mr. Anil Jaswal, Deputy Advocate General. For the respondent: Mr. G.S. Rathore, Advocate. R.B. Misra, J (Oral). The present criminal appeal has come up for consideration after leave to appeal under Section 378(3) of the Code of Criminal Procedure has been granted in reference to the impugned judgment and order dated 22.02.1997, passed by the learned Additional Sessions Judge-I, Kangra at Dharamshala, District Kangra, in Sessions Case No. 10-K/96, acquitting the alleged accused under Sections 302 and 120-B of the Indian Penal Code in reference to FIR No. 210 of 1996. 2. During the course of arguments, it has been brought to our notice that accused-respondent No. 1, Parveen Kumar, has 1 Whether reporters of Local Papers may be allowed to see the judgment? -: 2 :- died, as such, the criminal appeal against accused-respondent No. 1 is abated. 3. Prosecution case in brief is that on 28.04.1996, at about 10-11 p.m., the deceased, namely, Parkash Chand, while going to his home at village Kachhiari, when reached near his house, both the accused were noticed standing on the road side. PW Bisan coming out of her house to ease herself, saw both the accused standing on the road side and the deceased namely, Parkash Chand was also found present. The scuffle took place between the deceased and the accused, the deceased raised the alarm. The knife blow was given in the abdomen of deceased Parkash Chand by accused Parveen Kumar. The deceased fell on the road. The deceased cried for help. Bisan Devi alongwith her husband namely, Salo, PW-15, reached at the spot scene and found deceased Parkash Chand in the injured condition. The blood was oozing out from the wound, which the deceased has received in his abdomen. The clothes of the deceased were soiled with blood. The deceased Parkash Chand was taken to his house. The arrangement was made for the vehicle for shifting him to the hospital. The deceased was ultimately shifted to Civil Hospital, Kangra. He was attended upon by Dr. C.L. Chhadha, PW-14. The information was given to the police by PW-3, Jagjeet Singh. ASI Rumal Singh PW-19, moved the application for recording the statement of deceased Parkash Chand. The statement of said Parkash Chand was recorded, which is Ex. PW-19/A. Accordingly, FIR, Ex. PW - 17/A, was recorded. The said Parkash Chand -: 3 :- succumbed to the injuries in the hospital. The postmortem of the deceased was got conducted. The site plan, Ex. PW-19/B, was prepared by the Investigating Officer. Two pieces of shirt, Ex. P-1 and Ex. P-2, were taken vide memo, Ex. PW-6/B. The shirt, Ex. P-1, was produced by PW Rango Devi, which was taken into possession vide memo, Ex. PW-6/A. 4. After the investigation, both the accused were charged for the aforesaid offences and the criminal case was committed to the Sessions Court. 5. In order to prove its case, prosecution examined as many as twenty one witnesses, whereas, accused through his statement under Section 313 Cr.P.C. denied the prosecution case. 6. We have gone through the contents of the prosecution case and the material on record, we notice that the deceased, namely, Parkash Chand, on the date of incident, that is, on 28.04.1996 has given a dying declaration, in which he stated that he is working as Driver in 'Jogindra Transport' for the last about 12 years and on 28.04.1996 when he was about to reach to his house, just about 20 yards before his house, one person was found standing there and on enquiry he did not reply anything and that person immediately took out knife from his pocket and inflicted injury to the deceased Parkash Chand, however, Parkash Chand deceased caught hold of that person from the collar of the shirt, but the accused managed to escape as the shirt collar got torned. Deceased Parkash Chand went to his house and was shifted to Sub Divisional Hospital, Kangra, where in the presence of police the -: 4 :- deceased Parkash Chand has made statement under Section 154 Cr.P.C., Ex. PW-19/A. 7. As per the testimony of PW-1 Vysan Devi, she knew Brij Lal and at about 11 p.m. during the night of 28.05.1996, when PW-1 was sleeping in the upper storey of her house, she heard the sound of deceased Parkash Chand, who was her 'Devar' (the younger brother of her husband), Parkash Chand asked the accused Brij Lal why he alongwith other 2-3 boys is standing there. The deceased also asked that is it a bath room? PW-1 has stated that accused Brij Lal and other were standing in Gohar (thorough fare). Accused Parveen Kumar was caught hold by deceased from his shirt, at that time accused Brij Lal was also standing by the side. Parkash Chand deceased told the accused Parveen Kumar as to why he is standing there and in the meantime PW-1 wanted to call her husband. Parkash Chand raised alarm 'Salo Salo' and Parkash Chand fell down after receiving the knife blow. However, PW-1 in her statement has stated that she was not aware why and by whom the said blow was inflicted, as she only recognized accused Brij Lal at the spot. When PW-1 and her husband went to the spot, they found the deceased lying on the ground. The deceased Parkash Chand told PW-1 that both the accused were coming to murder him in a drunken condition. PW-1 and her husband took the deceased to home and one Partap Chand also reached there afterwards. None came outside and all the persons of the said locality said the deceased has not suffered the injury by knife blow, but the injury was received by him by some sharp object (khunga) -: 5 :- and, thereafter, the deceased was taken to the hospital in a taxi. 8. PW-3 Jagjeet Singh, nephew of the deceased came to know about the knife injury and that his uncle was admitted in Kangra hospital and PW-3 talked to his maternal uncle, who told him that he had a free fight with 2-3 boys and in that process he received a knife blow in his abdomen. PW-3 reported the matter to the police at about 2:30 p.m., but, deceased did not tell PW-3 the name of the person who inflicted knife blow to him. PW-3 stated in his cross-examination that the statement of deceased Parkash Chand was recorded by the police in Kangra hospital. However, after five minutes of such recording of the statement, Parkash Chand died. 9. From the scrutiny of the above testimony, even at this stage, it appears that the deceased Parkash Chand while giving dying declaration has not mentioned specifically the name of the accused-respondent. As per his testimony in dying declaration, only one person was near to his house, whereas in view of the testimony of PW-1 and PW-3, 2-3 boys were there, in addition to Brij Lal. In view of the testimony of PW-1 she recognized Brij Lal and injuries were inflicted by accused Parveen Kumar, whereas, PW-3 Jagjeet Singh has given a different version. In our considered view, the testimony of PW-1 does not inspire confidence in view of the contradictory versions emanating from the statement/dying declaration of the deceased and PW-1 and PW-3. We also notice that the learned Sessions Judge, after close scrutiny of other prosecution witnesses and material on record has also found -: 6 :- several contradictions, inconsistencies and improbabilities in the prosecution case. 10. On perusal of the impugned judgment, we do not find any scope of interference in the judgment. In our considered view, since main accused-respondent, who is stated to have inflicted injury by knife, as per testimony of PW-1, is said to have died and accused respondent No. 2 was only involved in the offence of conspiracy under Section 120-B of the Indian penal Code and the criminal appeal in reference to accused No. 1 is already abated. 11. On analysis of the prosecution witness and material on record, we find that the prosecution has failed to bring home the guilt against the accused. In these circumstances, criminal appeal being devoid of merit is dismissed. (R.B. Misra) Judge (V.K. Sharma) Judge 19th August, 2010 (virender)