IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No.768 of 2002 Reserved on 15.11.2011 Date of decision Nov. 23,2011 State of H.P. Appellant Versus Savitri Devi & Ors. Respondents Coram : The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice V.K.Ahuja, J. Whether approved for reporting1?No For the appellant: Mr. Vivek Thakur, Addl. Advocate General. For the respondents: Mr. Satyen Vaidya, Advocate. Per V.K. Ahuja, J. : This is an appeal filed by the State of Himachal Pradesh under Section 378 of the Cr. P.C. against the judgment of the Court of learned Additional Sessions Judge, Shimla, dated 10.9.2002, vide which he acquitted the respondents of the charge framed against them under Sections 302, 201 read with Section 34 IPC. 2. Briefly stated, the facts of the case are that the dead body of Prem Nandan Shah was seen in the nullah by PW-4 on 12.1.2000 and statement was made by Ram Singh, PW-1 under Section 154 Cr.P.C. vide Ext.PW-1/A that the complainant has been residing in Purani Abkari (Muhalla Kaithu), Shimla-3 since 1989 with his family. The house of accused Sangli Ram was in front of the complainant and accused Sangli Ram was living there alongwith his wife and children, Whether the reporters of Local Papers may be allowed to see the Judgment? Yes. including his daughter aged about 25 years. One Prem Nandan Shah (now deceased) had taken rented accommodation from one Mansha Ram near the house of the accused. Deceased Prem Nandan Shah lived in that house for about one year and thereafter left the same. It was alleged that Ritu, daughter of accused Sangli Ram used to take water from a public tap located near the house of Mansha Ram. Accused Savitri Devi used to complain that Prem Nandan Shah was teasing her daughter Ritu and was also having love affair with her daughter. Therefore, Sangli Ram and his wife were inimical with deceased accused and gave beatings to him about 8-9 months ago. 3. On 10.1.2000, complainant alongwith his wife was watching television and their house was knocked by Savitri Devi accused who told that that Prem Nandan Shah had come there and he is to be nabbed. The complainant stated that he came out of the house and Ritu daughter of the accused was standing in the verandah and the accused persons were seen running towards the Dhara of the complainant under construction. The complainant followed them towards the Dhara of Chet Ram and all the accused were found standing there. They started throwing stones on his Dhara. He also alleged that accused Sangli Ram was carrying a Drat (sickle) in one hand and danda in the other, whereas the other accused were carrying dandas. All the accused persons gave beatings to Prem Nandan Shah with stones and dandas and pushed down in the nullah, resulting in the death of Prem Nandan Shah. The information was given to the police on telephone by one Jagat Ram and the police verified at the spot and recorded the statement of the complainant. On completion of the investigation, the challan was filed before the Court of learned Judicial Magistrate, Court No.3, Shimla, who committed the case to the Court of learned Sessions Judge, Shimla, who assigned the case to learned trial Court, who tried the respondents, as detailed above, leading to their acquittal. 4. We have heard Mr. Vivek Thakur, learned Additional Advocate General for the appellant and Mr. Satyen Vaidya, Advocate, for the respondents and have also gone through the record of the case. 5. The submissions made by the learned Additional Advocate General appearing for the appellant-State was that the guilt of the respondents was established beyond any reasonable doubt and the findings to the contrary are not sustainable and as such are liable to be set aside. 6. On the other hand, the learned counsel for the respondents had supported the impugned judgment for the reasons recorded therein. 7. On a perusal of the record of the case, it is clear that the prosecution had examined 24 witnesses to substantiate its case. The most material witnesses can be said to be PW-1 Ram Singh and PW-5 Smt. Barfi Devi wife of PW-1 and their statements have to be appreciated as to whether they substantiated the case of prosecution or not. 8. PW-1 Ram Singh, who is the complainant, gave statement to the police under Section 154 Cr.P.C. Ext. PW-1/A. He is specific that accused Savitri Devi knocked the door of his house on the night of 13.1.2000 and the learned P.P. had not confronted him with this date of occurrence. He stated that Savitri Devi visited her house on the night of 10.1.2000, as alleged by the prosecution and as came in his statement under Section 154 Cr.P.C. He stated that he saw that the deceased was running away and the accused was following him carrying Darat and Dandas in their hands. He stated that all the four accused were standing outside his Dhara and deceased might have been inside his Dhara and broke one plank of the Dhara of the complainant and ran outside. Thereafter, the accused started throwing stones upon him and he was given a threat that if he disclosed this to any person, he would meet the same fate. He stated that due to fear he came back and thereafter told the occurrence to Kanshi Ram and Jagat Ram and also informed the police. However, there is nothing on record to show that prior to the statement made by him on 13.1.2000 Ext. PW-1/A, he ever had reported the matter to the police. Both these witnesses were not examined by the prosecution to prove that the complainant had informed them at any time about having witnessed the occurrence. In cross-examination, he reiterated that it was told to him that Prem Nandan Shah has to be nabbed as he was teasing the daughter of Savitri Devi, which fact was not stated by him in his statement before the police under Section 154 Cr.P.C. He was confronted with the statement Ext. PW-1/A in this regard, wherein it was not so recorded. He admitted that there are about 40-50 houses in his neighborhood. When the occurrence took place a lot of noise was raised and 8-10 persons came outside from their houses and others were watching from their houses. Chaman Lal, Ram Kishan and their brothers were among those persons who came outside from their houses, but none has substantiated his presence on the spot or occurrence as stated by him. He admitted that there was no provision of light in his Dhara which was located on the lower side of house of Sangli Ram towards jungle. He also stated that there are 3-4 houses near the Dhara, but none came from those houses to the spot. He also admitted that his Dhara is located in sloppy land with steep gradient. He remained on the spot for 4-5 minutes. He clearly stated that in his presence no injury was caused by the accused persons to the deceased. He was also watching the occurrence from a distance. He admitted that prior to the occurrence they had a quarrel with accused regarding tap water, which suggests of enmity in between him and the accused persons. He again stated that he had not seen the deceased running from near the house of Sangli Ram to the down side. He admitted that there was no light near the Dhara. He admitted that he is stating about the disclosure of the occurrence to Jagat Ram and Kanshi Ram for the first time in the Court today. He stated that he had told to police about the presence of 8-10 persons at the time of occurrence, but none has supported his statement. He was confronted with the statement of PW-1/A, wherein there was no reference to the presence of 8-10 persons. He also stated regarding the teasing of a girl of Sangli Ram, which he had only heard from the villagers, which is hearsay evidence. He also stated that he cannot say that at the time of occurrence which of the accused was running after whom. 9. PW-5 Smt, Barfi Devi, who is the wife of PW-1 Ram Singh, stated that she had heard that there had been an altercation between deceased and the accused and the deceased had left the locality and taken a house somewhere else. He never came to that place and she does not know as to what had happened. This is in contradiction to the statement of PW-1 Ram Singh that he was watching television with his wife when the accused Savitri Devi knocked at their door and told that there was some thief outside. She also denied the suggestion that the deceased was having illicit relation with Ritu or used to visit their house. She denied that the accused were inimical towards the deceased for this reason or gave thrashing to the deceased and killed him and thereafter threw him in the Nullah. She stated that PW-1 had not gone outside the house when the incident is alleged to have occurred. She also stated that her husband never told about any altercation during that night or afterwards or any threat given by accused to her husband. This clearly shows that she has contradicted the statement of PW-1 Ram Singh on all material particulars. 10. The statement of PW-1 Ram Singh is full of contradictions and does not find corroboration from the statement of his wife. He has come up with all new pleas that he has told about the occurrence to all the persons, but in the Court he clearly stated that he had not alleged in his police statement about those persons, who have not been examined to substantiate his statement. This witness does not appear to have seen the occurrence from a close quarter since it looks improbable that after having come to his house, he will remain mum and will not tell the police or his wife about what he had seen earlier. He also does not come up with any such statement to the police when the dead body was recovered, but when the police visited the village, he gave statement. The statement of the other witnesses are not material and have been referred to by the learned trial Court, but nothing specific has come up in favour of the prosecution. 11. Apart from the above, the prosecution had also examined the Medical Officer PW-15, Dr. Piyush Kapila, who conducted the postmortem on the dead body of the deceased and found some injuries in the form of abrasions, contusions and two lacerations and a fracture on rib No. 4 on left side. He also stated that there was smell of alcohol and its concentration was 191.5 Mg per cent. The death had taken place due to multiple ante mortem injuries, specially on head and lung which led to haemorrhagic shock and death. He gave report Ext.PW- 15/A. In cross-examination he does not rule out that the injuries in question were not possible by fall and even in regard to the major injuries, which were lacerated wounds, he has stated that these are also possible by fall, if a person strikes against a projected or a hard surface. He also admitted that the deceased had consumed liquor and it was difficult for the person having consumed so much liquor to walk on the road while going towards nullah and thus the possibility that deceased may have fallen from the Dhara and suffered the injuries, has not clearly been ruled out by the Medical Officer. 12. In view of the above discussion, we accordingly hold that the findings recorded by the learned trial Court holding that the prosecution had failed to prove its case beyond any reasonable doubt cannot be said to be perverse calling for an interference by this Court. We, therefore, hold that there is no merit in the appeal filed by the appellant-State, which is dismissed accordingly. The bail bonds furnished by the respondents shall stand discharged. ( Deepak Gupta ), Judge. November 23, 2011. (V.K. Ahuja), (mlg) Judge.