IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 308 of 2002. Date of Decision : 16.09.2011 State of Himachal Pradesh ….Appellant. Versus. Nazir Ahmed & others. ….Respondents. Coram: Hon’ble Mr. Justice R. B. Misra, Judge Hon’ble Mr. Justice Dev Darshan Sud, Judge. Whether approved for reporting1? No. For the Appellant : Mr. R.K. Sharma, Sr. Addl. Advocate General with Mr. Rajinder Dogra, Addl. A.G. For the respondents : Mr. Surender Sharma, Advocate. Per Justice Dev Darshan Sud, J (Oral). The State has challenged the judgment of acquittal passed by the learned Additional Sessions Judge-II, Kangra at Dharamshala acquitting the accused for offences punishable under Section 302 read with Section 34, I.P.C. 2. The genesis of the entire incident is a dispute between Sultan Ahmed (PW4) and the accused, who are butchers by profession and had quarrelled over the price of purchase of goats to be sold as mutton. We need not to go into the details of the evidence, as what we find from the record of the case is that it is based solely on the statement of Sultan Ahmed (PW4), who gives a vivid description of the entire incident and states that the accused had assaulted deceased Dil Mohamad with a “Fatta” (board) used for cutting/chopping fish and a knife. Whether reporters of the Local papers are allowed to see the judgment? 2 He states in his evidence that two other persons Munsaf Ali (PW10) and Mohammad Rafi (PW7) were the eye witnesses of the entire incident and they had tried to rescue deceased Dil Mohammad from the clutches of the accused. 3. At this juncture we note that the parties in this case are related that is to say accused Nazir is the “Sadhu” (brother-in- law) of PW4 Sultan Ahmed and other accused are the sons of maternal aunt (Mousi) of the deceased Dil Mohammad. We also note that PW10 Munsaf Ali and PW7 Mohammad Rafi are also the sons of another “Mousi” (maternal aunt) of the deceased. 4. Adverting to the statement of Sultan Mohammad (PW4), who had narrated the entire incident in Ex.PW4/A to the police, which was made basis for registering the FIR against the accused, he states that he had two sons: the eldest son stays away in connection with his avocation, while the deceased was a tailor by profession. He himself is a butcher and used to purchase and sell the meat of goats etc. On the fateful day, Nazir Mohammad, who is his brother-in-law (Sadu), who also deals in meat, had a grudge against him for the reason that PW4 was purchasing goats at a higher rate which was making purchases by the accused uneconomical and the trade financially unviable. On 28.12.1995 at around 7.00 p.m. in the evening he was standing in the hotel of PW9 Uttam Chand when Nazir Mohammad called him and he (accused) and his sons namely Dhinu, Chhaju and Sukha asked him why he was purchasing billy-goats at higher rates, which was adversely affecting their trade. He got scared and came out. On hearing the shouting and altercation, his son deceased Dil Mohammad and two other 3 persons Munsif Ali, PW10 and Mohammad Rafi, PW7 reached the spot. Chajju and Sukha came running to the spot, took out a board (fatta) used for cutting fish and knife and assaulted Dil Mohammad, who sustained injuries. Both Munsaf Ali and Mohammad Rafi tried to rescue Dil Mohammad from the clutches of the accused. 5. The prosecution case is that thereafter this witness took the deceased to Primary Health Centre at village Rey, where he was treated by PW1 Dr. Kashmir Singh, who found simple injuries on his body and after rendering medical aid to him, asked PW4 to bring injured Dil Mohammad to the hospital in case of any complications. At the time of examination, he found the deceased to be fully conscious and responding well to all commands. On the next day, in the morning his condition deteriorated and he was taken to CHC, Indora, where Dr. T.K. Roy (PW2) on examination found the deceased in Grade-III comma and referred him to PGI Chandigarh. He informed the police about the entire incident. Deceased thereafter was being shifted to PGI Chandigarh but he died on the way. 6. Adverting to the evidence on record, we find from the statement of PW4 Sultan Ahmed that not only does he describe the entire incident in detail but also states that he was struck on the head by the accused with a two kilogram weight. Two other witnesses namely Mohammd Rafi (PW7) and Munsaf Ali (PW10) denied that any such incident took place in their presence. PW7 Mohammad Rafi states that the deceased was the son of their mother’s sister. He also states that he knows all the accused persons, who are the sons of their maternal aunt (Mousi). He 4 heard some noise near the Dhaba of Uttam Chand, when he reached there, Dil Mohammad was being taken to the hospital. He found a number of persons present near the Dhaba of Uttam Chand. Munsaf Ali (PW10) says that on the fateful day at around 6.30 P.M. he came to know that Dil Mohamad had suffered/sustained injury, upon which he went to Primary Health Centre, Ray. Both these witnesses were declared hostile. The have been cross-examined at length but nothing material has been elicited by the prosecution which in any manner would effect the veracity of their statement in examination-in-chief. These being the facts, we cannot accept the contention that the sole statement of PW4 as submitted by the learned Senior Additional Advocate General can be used for convicting the accused. Learned Senior Additional Advocate General submits that the postmortem report corroborates the fact that the death of Dil Mohammad was caused when he was struck on the head with a “Fatta” (board). But in our view that cannot be made basis for conviction of the accused. Statement of PW4 cannot be relied upon as he states that he was struck on the head with two kilograms weight by the accused and yet no injury was found on his person. Had it been so he must have sustained serious injuries on his head. He also states that PW7 and PW10 had witnessed the occurrence and had rescued the deceased from the clutches of the accused, but both these witnesses have not supported the prosecution case at all. Even PW10 Uttam Chand does not support the prosecution version. There is no evidence on record to establish partisan relationship between the accused 5 and the witnesses. PW7 and PW10 are also related to the deceased. 7. We are of the view that the statement of the PW4 cannot be relied upon for the reason that he is not corroborated on the occurrence by the other eye witnesses as noticed by us and there is not even a scratch on his body. No reliance can be placed upon his statement and the learned Additional Sessions Judge was right in reaching the conclusion that no offence has been established against the accused persons. This appeal is dismissed accordingly. Bail bonds furnished by the accused/respondents are discharged. (R.B. Misra), Judge. (Dev Darshan Sud), Judge. 16th September, 2011. (jai)