1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 340 of 2000 Decided on September 1, 2010 __________________________________________________________ State of H.P. …Appellant. Versus Lal Chand ...Respondent. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge. ¹Whether approved for reporting? For the appellant: Mr. Rajinder Dogra, Additional Advocate General, with Mr. Anil Jaswal, Deputy Advocate General. For the respondent: Mr. Raman Sethi, Amicus Curaie. Justice R.B. Misra,J. (Oral) In the present case bailable warrants were issued to ensure the presence of the respondent-accused, thereafter Non- bailable Warrants were issued, however, the presence of the respondent-accused could not be procured. Thereafter, an endeavour was made by this Court for declaring the respondent-accused as Proclaimed Offender. Accordingly, publication was published in News Paper 'Prabhat Khabar' vide order dated 1.6.2010 of this Court, however, before waiting the presence of respondent-accused, though he has been declared proclaimed offender, the matter is looked into on merits. 2. Mr.Raman Sethi, has been requested to assist this Court, on behalf of the respondent-accused and he has agreed to assist this Court. 2 3. The present Criminal Appeal has come up for adjudication after the grant of leave to appeal under Section 378 (3) of the Code of Criminal Procedure has been granted in reference to judgment dated 2.12.1998 passed by Learned Sessions Judge, Shimla, H.P., in Sessions Trial No. 33-S/7 of 1998, under Section 302 of the Indian Penal Code, acquitting the alleged respondent/accused. 4. The prosecution case is that deceased Vinod Mahto and accused Lal Chand hail from State of Bihar and both of them came to Shimla District some-time in the year 1997, to seek employment. They were employed as mate and assistant mate by Natpa Jhakri Project authorities, in connection with the construction of a tower at a place called Ratnari. Both of them rented a room in the building of one Balak Ram of village Ratnari and started living there together. On 26.4.1998, around 11.00 or 11.30 P.M., accused Lal Chand went to the quarter of Rahis Ahmad, Assistant Engineer, and informed him that his room-mate, namely Vinod Mahto, had come to their quarter in a drunken state and thereafter he left the quarter and he was not traceable, however, accused Lal Chand went to the quarter of Rahis Ahmad next morning around 6.00 A.M., and told him that Vinod Mahto (deceased) was lying in the Nullah. Accordingly, dead body was recovered and Project Manager was accordingly informed, thereafter, in the evening Lal Chand accompanied by Assistant Engineer Rahis Ahmad and Project Manger Jasvinder Singh visited the police station, Kotkhai and lodged the report. The doctor who conducted the postmortem examination, found 3 the following injuries on the dead body:- 1) One lacerated wound at the junction of temporal pariental 3” x 2”. Clotted blood present at the site, underlying bone fracture. 2) Two lacerated wounds over the forehead just above the left eye 1.5 cm x 0.5 cm. 3) Bluish discolouration all over the face one lacerated wound 3” x 1 ½” from outer canthers of left eye up to half of the cheek diagonally clotted blood was present. 4) Lacerated wound of about 1.5 cm at lateral aspect of neck. Fracture of both clavicles with fracture of cervical vertibeal. 5) Abrasion with laceration dorsal aspect of right hand above 1.5 cm. 6) Lacerated wound on dorsal aspect of right leg 1.5 cm. 5. After investigation, the accused was arrested and charged for the offence under Section 302 of the Indian Penal Code and the case was committed for Sessions Trial. In order to prove its case, the prosecution has examined as many as 11 prosecution witnesses. Whereas, the accused through his statement under Section 313 of Cr.P.C., has denied the prosecution case. 6. On behalf of the prosecution, PW.1 Shashi Pal Sharma, PW.2 Ram Chand, PW.3 Raghubir Singh, PW.4 Hitender, PW.5 Raj Kumar, PW.6 ASI Balwant Singh, PW.7 S.I. Jagdish Chand, PW.8 Doctor Raj Kamal, PW.9 Jia Lal, PW.10 Rahis Ahmad and PW.11 ASI Sharif Mohammad, were examined. 7. On scrutiny of the prosecution witnesses and materials on record, we notice that on 26.4.1998 respondent- accused alongwith deceased returned to their quarter around 4 5.00 P.M., from their place of work and took their meals around 7.00 P.M and about 7.30 P.M., the deceased left the quarter and returned around 9.00 P.M., and he was at that time excessively drunk, thereafter, both switched on a tape recorder to listen some songs and went to sleep around 9.30 P.M., in the same bed and at about 10.30 P.M., when accused Lal Chand turned side, he felt the deceased was not in the bed, though the light was switched off and the tape recorder was on, thereafter, after switching off the tape recorder respondent-accused started searching for the deceased but could not find him. 8. In the present case, no direct evidence is available and none of the prosecution witnesses have seen assaulting anybody the victim / deceased. The respondent-accused himself had made an endeavour for searching the victim / deceased and dead body was recovered from the nullah and thereafter postmortem examination was made. 9. In the present case the events or steps are not making the complete chain, therefore, in absence of any evidence, the prosecution case cannot be said to be proved beyond reasonable doubts. The learned Sessions Judge has rightly come to the conclusion that the prosecution has failed to prove its case beyond reasonable doubt. In our considered view also, the prosecution has failed to bring home the guilt to the accused and there is no scope of interference in the findings given by learned Sessions Judge. In view of the aforesaid facts and circumstances, the present criminal appeal, being devoid of any merit, is dismissed. 5 10. After dismissal of the Criminal Appeal, the earlier proceeding for declaration of respondent-accused as proclaimed offender, is dropped. 11. The bail bonds furnished by the accused/respondents are hereby discharged. 12. We place on record our words of appreciation to Mr.Raman Sethi for his assistance to the Court as an amicus curaie. (R.B. Misra) Judge September 1, 2010 (V.K. Sharma) (Purohit) Judge