1 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cri.Appeal No. 470 of 2000 Date of Decision: 23rd November, 2010 State of Himachal Pradesh Appellant Versus Gopal Singh Respondent Coram The Hon’ble Mr. Justice R.B.Misra,J. The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? No. For the appellant: Mr.R.K.Sharma, Addl. Sr. A.G. For the respondent: Mr. Neeraj K.Sharma, Advocate, vice counsel. Sanjay Karol, J. (Oral) For an offence, which is alleged to have been committed on 30.5.1997, accused was put to trial. In terms of judgment dated 31.3.2000, passed by learned Additional Sessions Judge, Shimla, in Sessions Trial No. 2 of 1999 titled as State of H.P. Vs. Gopal Singh, accused stands acquitted of the charged offence. 2. It is the case of the prosecution that Shri Raflu Ram (since deceased) was residing in Village Punan. On 29.5.1997 at about 6 p.m. Sunil Kumar (PW-4) son of Raflu Ram was on his way to the Whether the reporters of Local Papers are allowed to see the Judgment? 2 village fair price shop in village Punan. Accused who are related to Raflu Ram, without any rhyme or reason picked up a quarrel with Sunil Kumar. Accused threatened him and proclaimed that he would set him on fire in the village cremation ground. Sunil Kumar could not go to the shop and consequently returned home and narrated the incident to his father. In the morning of 30.5.1997 Shri Keshav Ram (PW-1) and Shri Kamlu Ram (PW-2) had come to the house of Raflu Ram. At that time Smt. Rupi Devi wife of Raflu Ram and their daughter Beena Devi had gone to the fields and Sunil Kumar (PW-4) alongwith other children had gone to attend the school. Same day at about 9.30 a.m. accused was taking his cattle for grazing through the village path. On way, Raflu Ram confronted him with the incident which took place on the previous evening. This resulted into Scuffle between the two. Accused pushed Raflu Ram and then gave him a blow of axe on the chest. At that moment Keshav Ram (PW-1) appeared at the spot and managed to rescue Raflu Ram from the clutches of the accused. While fleeing from the spot accused dropped the axe (Ext.P-1). PW-1 brought Raflu Ram to the house where he breathed his last. In the meanwhile Kamlu Ram (PW-2) saw accused running away from the spot. While Rupi Devi 3 returned from the fields she was informed of the incident and then she lodged report (Ext.PD) with the police on the basis of which FIR No.136 (Ext. PE) dated 31.5.1997 was registered at Police Station, Rampur, under Section 302, IPC. Inquest report (Ext.PK) was prepared and post-mortem was got conducted through Dr.Puneet Mahajan (PW-12), who issued post mortem report (Ext.PP). On further examination cause of death was opined to be “an acute myocardial infarction leading to sudden cardiac failure”. The weapon of offence i.e. axe (Kharatu) (Ext.P-1) was taken into possession by the police vide memo (Ext.PA). Other necessary formalities were completed and with the completion of investigation challan was presented in the Court for trial. 3. The accused was charged for having committed an offence punishable under Section 304, Part-I, IPC to which he did not plead guilty and claimed trial. 4. In order to prove its case prosecution examined 12 witnesses and the statement of the accused under Section 313, Cr.P.C. was also recorded in which the accused took the following defence:- “I am innocent. I have been falsely implicated in this case. The deceased and Keshav Ram inflicted injuries on my 4 person for which I was medically examined.” 5. Trial Court acquitted the accused of the charged offence. Hence the present appeal. 6. Original complainant Smt. Rupi Devi could not be examined in the Court for the reason that she was not traced. 7. Shri Keshav Ram (PW-1) the star witness who alone is alleged to have witnessed the occurrence of the incident, has not supported the prosecution case at all. It is the case of the prosecution that incident was narrated by him to PW-2 and PW-4 as also Smt. Rupi Devi and otherwise none of these witnesses have witnessed the occurrence of the incident. 8. From the record, it is also apparent that there was long standing dispute and animosity between the accused and the deceased. It has also come on record that the accused had actually filed a complaint with the police in relation to the very same incident against PW-1 and the deceased. Police found that the complaint was false and consequently submitted cancellation report in the Court. It has also come on record that the accused had also sustained injuries which could be linked to the incident in question. 5 9. According to PW-1 deceased had stopped the accused and enquired about the incident, which took place on the previous day. He states that this resulted into a scuffle between the two and when the accused pushed the deceased fell on the ground. However, beyond this PW-1 does not state anything which would prove the culpability of the accused with the charged offence. In fact PW-1 states that when he tried to intervene accused who was armed with an axe attacked him. However, he was able to overpower the accused, snatch the axe from his hands and then give beatings to the accused with his fist blows. Accused ran away towards his house. He categorically states that he had not seen accused giving beatings to the accused with axe. This witness has been cross-examined at length by the prosecution and nothing favourable could be elicited from his testimony, which would show his culpability to the charged offence. 10. Now PW-2 and PW-4 undisputedly are not witnesses to the occurrence of the incident. It is the version of PW-2 that PW-1 narrated the incident to him. In our considered view presence of this witness at the spot appears to be doubtful. He is the real brother of the deceased. He is an interested witness and his statement needs to be examined with circumspection. He admits to be 6 residing permanently alongwith his family in the Dogari in Village Kraltu. He justifies his presence at the spot by stating that he had visited the house of his brother to collect the clothes which he had given to the deceased for sewing. Now except for bald statement of this witness there is nothing on record to show that deceased was a tailor master or carrying on the business of tailoring. 11. PW-4 was 12 years of age at the time of occurrence of the incident. His testimony, in our considered view, also does not inspire confidence. He has made improvements from his earlier statement (Ext.PB) recorded by the police under Section 161, Cr.P.C.. He admits that his version that his father was beaten by the accused by giving blows with Kharatu; that the accused had met him near the shop of the society on the previous day; that the accused had threatened him not to be mentioned therein. According to the prosecution, incident took place at about 9.30 a.m. and immediately thereafter Raflu Ram died. This witness states that he learnt about the death only after reaching home from school at about 4.30 p.m. This version is highly improbable. Information of death of the father would have been definitely given to the school and the child called back home early. 7 Therefore, it would be totally unsafe to rely upon the uncorroborated testimony of this witness. 12. We further find that the prosecution version is not supported by medical evidence on record. According to Dr.Puneet Mahajan (PW-12) the cause of death was “an acute myocardial infraction leading to sudden cardiac failure”. There are no injury marks, internal or external, corresponding to the blow of axe given by the accused. 13. The accused has had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down in Mohammed Ankoos and others vs. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the persons has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. (R.B. Misra), Judge. November 23, 2010 (Sanjay Karol), (C) Judge.