IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr. Appeal No. 386 of 1996 Reserved on: March 18, 2010 Date of Decision : March 25, 2010 State of H.P. …Appellant. Versus: Purshotam Singh …Respondent. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant: Mr. Vivek Thakur, Addl. A.G. with Mr. R. M. Bisht, Dy. A. G. For the respondent : Mr. Anoop Chitkara, Advocate Sanjay Karol, J. In Sessions Case No. 7-N/VII-1995, the accused was charged for having committed an offence punishable under Section 302 IPC. The crime is alleged to have been committed by him on 1.10.1993 and after trial, the Court below acquitted the accused in terms of its judgment dated 1.9.1995. The present appeal filed by the State under Section 378 of the Code of Criminal Procedure in the year 1996 has matured for hearing now. 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 It is the case of the prosecution that on 1.10.1993, at about 9.30 p.m., Sh. Ram Singh went to purchase bidies from the shop in village Gangwal falling within the jurisdiction of Police Station, Indora. His son Shri Subhash Chand (PW-6) followed him. Since the shop was closed, Sh. Ram Singh decided to go back home. On the way he was stopped by accused Purshotam Singh who gave a blow of danda on the head of Sh. Ram Singh due to which he fell on the ground. The incident was witnessed both by PW-6 and Shri Mohan Lal (PW-7) who also happened to be present at the place of occurrence of the incident. They were also threatened by the accused of dire consequences. Both PW-6 & PW-7 carried Sh. Ram Singh home. PW-7 lodged a report with the police and FIR No. 490/93 (Ext.PK/1) was registered with Police Station, Indora under Sections 341 & 506 IPC. Sh. Ram Singh was given medical aid firstly at Govt. Hospital, Indora and then at the private Nursing Home at Pathankot, where he was also operated upon for head injury. However, inspite of medical care he succumbed to injuries in the hospital on 10.10.1993. The police carried out the investigation and the post mortem was conducted by Dr. D. R. Riyal (PW-5), Civil Hospital, Nurpur, who opined that the deceased had died due to “cardio respiratory failure as a result of shock due to the head injury”. The statement of the witness was recorded and necessary formalities completed by the Investigation Officers i.e. HC Kushal Singh (PW-10) and ASI Ram Singh (PW-11). With 3 the completion of the investigation, challan was presented in the Court and the accused was charged for having committed an offence punishable under Section 302 IPC, to which he did not plead guilty and claimed trial. In all, the prosecution examined 11 witnesses and the statement of the accused under Section 313 Cr.PC was also recorded. The defence is that of mere denial. The trial Court acquitted the accused on the ground that the prosecution witnesses did not inspire confidence and in the absence of any clear convincing and cogent material on record the accused could not be convicted of the charged offence. That Sh. Ram Singh died is not in dispute. PW-6 & PW-7 are the only spot witnesses. They cannot be said to be trustworthy witnesses. Record (Ext. DX) evidently reveals that they are closely related and are thus interested witnesses. PW-6 is the grand son of Shri Chandu and PW-7 is the grand son of Shri Nandu. Both Chandu and Nandu are real brothers. In the Court, both of them have feigned ignorance about this fact. There was no reason for them to have taken this stand. According to PW-6, his father Sh. Ram Singh (deceased) occasionally used to go to the market to buy bidies and would normally return after 15 to 20 minutes. However, on the fateful day, when his father did not come back within 10 minutes, he went to find his father as he became “impatient” and “worried”. No explanation is forthcoming as to what made 4 him impatient and worried on that day. It is also not his case that he usually used to go to the market to look for his father. It is not that his father had taken more time than what was normally required. Further, according to him, the shop of Shri Ram Lal from where the bidies used to be purchased by the deceased normally closed at 9.00 p.m. and on the fateful day it was also closed. If that was so, then what prompted his father to leave home at 9.15 p.m. for purchasing the “bidies”, has also not been explained. While following his father, he found that in a lane near the shop of Shri Ram Lal, the accused was quarrelling with his father. This he observed in the “light coming in the lane from the nearby shop”. Further, upon asking the accused the reason for abusing his father, he was informed that a suit had been filed against him. At that, his father asked the accused not to abuse as the matter was pending. However, the accused gave a blow of danda on the head of his father, who sustained injuries on the head and fell on the ground. Blood also started oozing out from the nose and mouth which stained the clothes. In the meantime, Shri Mohan Lal who was coming from his house and going towards his shop had also reached there. The accused fled away from the spot along with the danda proclaiming that he would kill all of them. With the help of PW- 7, he carried his father home and got the report (Ext.PK) dated 1.10.1993 lodged with the Police. This witness has made material improvements from his first version (Ext.PK) recorded with the police. The fact that 5 he had seen the accused quarrelling with his father in the light coming from the nearby shop is not there in the earlier version. The fact that the accused had abused his father or that he had inquired the reason for the same or that his father had asked the accused not to abuse is also not there. The fact that due to the head injury his father had started bleeding from the nose and mouth which stained the clothes is also not there. These improvements are significant, major and material in view of discussion hereinafter. Importantly, this witness admits that at the time of occurrence of the alleged incident, he was at a distance of just 2 feet from the accused and his father. Yet he admits not to have made “any attempt to intervene and save his father from the blow”. He further admits that even PW-7 did not make any such attempt. Shockingly, neither he nor PW-7 tried to either apprehend the accused nor raise any cry for help. This would not be the normal and natural conduct of a son whose aged father is being assaulted by a person with whom, admittedly there is prior litigation. PW-6 was a young man of 26 years at the time of occurrence of the alleged crime. He also did not seek help from any of the shopkeepers. According to him, PW-7 also had a shop in the village. They could have easily cried for help and taken action against the accused. The prosecution version that PW-6 was present at the spot appears to be doubtful. It is the version of PW-6 that Smt. Shreshtha Devi was also present at the spot at the time of 6 occurrence of the alleged crime. However, there is no reference of the said Smt. Shreshtha Devi in the report (Ext.PK). The possibility of introducing her by the investigation agencies only to corroborate the version of PW-6 cannot be totally ruled out. She is a lady and had no reason to be out at night. The place of occurrence is a village. Even though she was cited as a witness but was not examined in the Court “being a witness of the same sequence”. Smt. Shreshtha Devi was the only independent witness who, perhaps could have elicited the exact truth. Both the investigating agency as also the prosecution have not handed the matter in a fair manner, rendering the prosecution version to be further doubtful. According to PW-7, he had gone to purchase “bidies” and near the shop of Sh. Ram Lal he found the accused and the deceased “arguing with each other”. Within a minute of the arguments, the accused gave a blow of danda on the head of the deceased. He was standing nearby. According to him, even though the shops in the village normally closed at 9.00 p.m. but however, on the fateful day, the shops were open and closed only after the occurrence of the incident. He does not remember who was present in the shop of Sh. Ram Lal at the time of the occurrence of the incident and who closed the same. Thus the version of PW-6 stands materially contradicted, according to whom, the shop of Sh. Ram Lal was closed at the time of the occurrence of the incident. Now, if the incident had taken place in front of the shop of Sh. 7 Ram Lal, the person sitting in the shop could have been associated during the investigation and his statement recorded in the Court. Sh. Ram Lal has not been examined to prove that his shop, on the fateful day was closed. The incident is alleged to have taken place in a lane. Even this witness admits that no attempt was made by him or PW-6 to apprehend the accused who was fleeing with the danda. Since the shops in the village were open, why no cry for help was raised has not been explained by him. The testimony of this witness also does not inspire confidence and cannot be relied upon for determining the guilt of the accused. Importantly, Shri Kushal Singh (PW-10) who carried out the investigation admits that he did not record the statement of PW-7 prior to 3.10.1993. This was not done for the reason that he allegedly was busy in the investigation. He was out on investigation between 1.10.1993 and 3.10.1993. This statement stands contradicted by PW-7, according to whom, the police had visited the house of PW-6 on the night of 1.10.1993 as also the morning of 2.10.1993. In fact according to him, he was also associated in the investigation of the case on 2.10.1993. Admittedly, after the incident PW-7 was with PW-6 all along. He had also accompanied the deceased and PW-6 to the hospital at Pathankot. This proves his closeness and proximity with the complainant party. Even he did not inform the occurrence of the incident to the police. His statement was recorded only on 8 4.10.1993 which delay remains unexplained. This fact renders the prosecution version to be further doubtful. Undisputedly, the parties had been litigating as on the date of the occurrence of the alleged incident. The possibility of the accused being falsely implicated cannot be ruled out totally. According to Dr. B. N. Gupta (PW-3), the injury suffered by the deceased could not have been caused with one blow. The weapon used was blunt. In the instant case, the accused is alleged to have given a single blow only with a danda. Hence, the medical evidence also negates the theory propound ed by the prosecution. For all the aforesaid reasons, we find no merit in the present appeal which is accordingly dismissed. The bail bonds furnished by the accused are ordered to be discharged. ( Deepak Gupta ) Judge. ( Sanjay Karol ), Judge. March 25, 2010. (rana)