IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 47 of 1995 Reserved on: 17.11.2008 Date of decision: 21.11.2008 State of H.P. ... Appellant Versus Moti Ram and another … Respondents Coram : The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellant: Mr. Rajesh Mandhotra, Deputy Advocate General. For the respondents: Mr. H.K.S. Thakur vice Mr. B.R. Chauhan, Advocate. Per V.K. Ahuja , J.: This is an appeal filed by the State of H.P. against the judgment of the Court of learned Additional Sessions Judge, Shimla, dated 24.1.1994, vide which the respondents were acquitted of the charge framed against them under Section 302 read with Section 34 I.P.C. Briefly stated, the facts of the case are that on 8.1.1991, at about 4.10 P.M., a report was lodged with the police by one Smt. Ambika Devi wife of Khub Ram. It was alleged that her husband used to leave daily at about 8.00 A.M. for the work of Ghal and used to come back in the evening. On 7.1.1991 he had gone for the work but had not returned in the evening. One Ved Ram and Paras Ram also used to go 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 with her husband for the work of Ghal. It was alleged that at about 6.00 P.M. Ved Ram and Paras Ram told her that one Moti Ram and another person, whom we could not identify, were giving beatings to her husband near nursery. It was further alleged by Ved Ram that he and his brother could not intervene because of the fear. She went to the place accompanied by her daughter Shukri Devi and Ved Ram and found that her husband Khub Ram was lying in the Nullah in an unconscious condition. She, therefore, alleged that her husband had been given beatings by Moti Ram and his companion with an intent to kill him and they had thrown him in the Nullah from the Dhank. Her husband had injuries on mouth and other parts of the body, was blood stained and was unable to speak. It was alleged that she brought her husband to her house accompanied by Shukri Devi and Ved Ram, at about 9.30 P.M. and had sent her husband alongwith other persons to hospital Nirmand on the next day and had come to the Police Station to lodge the report. She also alleged the motive that she and her husband Khub Ram had deposed against Moti Ram who had threatened to kill them by burning. On this report, a case was registered under Section 307 I.P.C. and since Khub Ram died, thereafter the case was converted to under Section 302 I.P.C. After investigation, the challan was filed before the learned trial Court, who committed the case to the learned Sessions Judge and the case was tried by the learned Additional Sessions Judge, Shimla, leading to the acquittal of the respondents. We have heard the learned counsel for the parties and have gone through the record of the case. On a perusal of the evidence led by the prosecution, it is clear that there is no eye witness to the occurrence. The version given by 3 the complainant Smt. Ambika Devi and her report to the police is that she had learnt about the fact that her husband was being given beatings by Moti Ram and his companion, what was told to her by Ved Ram and Paras Ram who came to her house. The most material witnesses can be said to be Ved Ram and Paras Ram who may have seen the beatings given by Moti Ram and his companion to deceased since the complainant Ambika Devi or her daughter had not witnessed the giving of beatings by the accused persons. The said Ved Ram has been examined as PW-2, who has stated that he alongwith Khub Ram and Paras Ram use to work together. On 7.1.1991, he finished the work at 5.30 P.M. while deceased Khub Ram finished the work at 5.00 P.M. At about 5.35 P.M. when he reached near Shawada, they heard the noise of a quarrel. They stayed back but did not notice about the quarrel as to the persons who were. However, he reached the house of Khub Ram accompanied by Paras Ram and enquired from Smt. Ambika as to whether Khub Ram had reached the house or not. He also told Smt. Ambika that some quarrel had taken place but he does not know amongst whom. He thereafter alongwith Ambika and Shukri Devi went to the place of quarrel, found Khub Ram lying there in an injured condition with head injuries and he was unconscious. He stated that they came back as there was none to remove him and was removed from the spot on the next morning. Whereas, the complainant had alleged that she had brought her husband to the house with the help of these persons at about 9.30 P.M. A perusal of the statement of this witness shows that he did not state at any time that he told Smt. Ambika that her husband was given beatings by Moti Ram and his companion. He was declared as hostile and was subjected to detailed cross-examination. He denied 4 having made such statement to the police. The second person accompanying him was Paras Ram, who has been examined as PW-3. He stated that on that day Khub Ram left the job at about 5.00P.M., Whereas, he and Ved Ram left their job at 5.30 P.M., meaning thereby that they did not leave the place of work together. He stated that when he reached near Nullah, at about 6.00 P.M., a quarrel was going on. He further admitted that he had heard the cries of Khub Ram, but because of fear, they ran away. He did not state that he tried to find out the cause of the cries or as to who were the persons or stated about the persons present or quarreling with Khub Ram. He was declared as hostile and was allowed to be cross-examined by the prosecution. He denied having been gone to the house of Khub Ram or informed his wife, though stated that Ved Ram had left for the house of Khub Ram to inform his wife Ambika. Thus, both the eye witnesses who had allegedly seen the occurrence and had told the facts to the wife of the deceased, turned hostile and did not substantiate the assertions made in the F.I.R. Ext. PQ that they informed the deceased’s wife about the quarrel or about the beatings given by the respondents to the deceased. The third important witness can be said to be PW-1 Shukri Devi(Shankri Devi) daughter of the deceased, who was present in the house when these witnesses allegedly came to their house and informed her mother. She stated that at about 6.30 Ved Ram came to their house and she and her mother were present there. He stated that there were some quarrel and she alongwith her mother and Ved Ram went towards Nullah for searching of her father who was lying in an injured condition having suffered injuries on his head. He was not in a position to talk. She stated that they came back to their house but did 5 not bring her father with them. Her father kept on lying in Nullah during night time. She was declared hostile and during the cross-examination, she denied that Ved Ram had informed them that the respondents were giving beatings to her father in Adda Nullah. She admitted enmity in between Moti Ram and Ved Ram and stated that in that quarrel there was a court case and her father had appeared as a witness in favour of Ved Ram and, therefore, there was enmity in between Moti Ram and her father and they had attacked her father. But the said Ved Ram in his cross-examination has stated that Khub Ram was cited as a witness by him in that case. But his statement was not recorded who was not an eye witness to the said occurrence in the case of Moti Ram. Therefore, he has ruled out any enmity in between the respondents and the deceased due to his court case. The fourth material witness was Smt. Ambika wife of the deceased who had lodged the report, but she could not be examined since she died during the trial of the case. The mere recovery of the danda in pursuance to the disclosure statement made by respondent Moti Ram under Section 27 of the Evidence Act cannot be said to be material since there is nothing to establish that the injuries were caused with this danda in question. Moreover, the witness to the disclosure statement and recovery of danda was Puran Chand PW-4, who was not an independent witness but was the uncle of the deceased. The Investigating Officer PW-16 Jiwa Ram had admitted that the accused remained in custody from 11th to 14th January but did not make any disclosure statement. No independent witness was associated at the time of recording of this statement and the learned trial Court had concluded that this statement cannot be said to have been made by the accused voluntarily. The other 6 witness to the disclosure statement Nathu Ram was given up by the prosecution as unnecessary. Thus, the recovery of danda was shrouded with suspicious circumstances since no independent witness was associated and the mere recovery of the danda is not sufficient to prove the guilt of the respondents. The Medical Officer PW-17 Dr. R.K. Bajaj had admitted that the injuries mentioned in the postmortem report Ext. PX can be caused by a fall from a Dhank. Therefore, the possibility that the deceased may have fallen from the Dhank also cannot be ruled out, in view of the facts and circumstances of the case. Keeping in view the fact that the material witnesses have not supported the prosecution case and there is no evidence as against the respondents to prove their guilt, the findings recorded by the learned trial Court that the prosecution has failed to prove their case beyond any reasonable doubt cannot be termed as perverse calling for an interference by this Court. In view of the above discussion, we hold that there is no merit in the appeal filed by the appellant, which is dismissed accordingly. The bail bonds furnished by the respondents shall stand discharged. ( Deepak Gupta ), Judge ( V.K. Ahuja ), November 21, 2008 Judge (BSS) 7