IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.A. No. 250 of 1999. Decided on: 1.7.2010. ___________________________________________________________ State of H.P. … Appellant. Versus Hari Dutt … Respondent. ___________________________________________________________ Coram: Hon’ble Mr. Justice R.B. Misra, Judge. Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 For the appellant : Mr. Rajinder Dogra, Addl. A.G. and Mr. Anil Jaswal, Dy. A.G. For the respondent : Mr. Vinod Thakur and Mr. Vinod Gupta, Advocates. ___________________________________________________________ R.B. Misra, J. (Oral). The present criminal appeal has come up for consideration after leave to appeal has been granted, under Section 378 (3) Cr.P.C., in reference to the impugned judgment, dated 17.2.1999, passed by the learned Sessions Judge, Shimla, in Sessions Trial No. 24-S/7 of 1998, acquitting the respondent- accused for the alleged offence, under Section 307 IPC. 2. In order to adjudicate the criminal appeal, it is necessary to give the factual back ground of the case. 3. According to the prosecution, injured Ashok Kumar’s mother’s father, i.e. Nana had no male issue and accused Hari Dutt being his collateral had a feeling that on his death his entire property including land situated in village Shuhal would come to Ashok Kumar. However, on death of the Nana of Ashok Kumar, 1 Whether reporters of the local papers may be allowed to see the judgment? 2 the mother of injured Ashok Kumar inherited the entire property of Nana of Ashok Kumar including the land and in that context, PW-5 Smt. Uttami Devi, the mother of Ashok Kumar shifted to village Anu and started cultivating the land. 4. The prosecution case is that injured Ashok Kumar on 18.11.1997 had gone to his ‘Ghasni’ land in village Anu to fetch hay accompanying his mother PW-5 Smt. Uttami Devi, sister Sushma and PW-7 Rukmi Devi. PW-4 Ashok Kumar started coming back from ‘Ghasni’ land with loads of hay at 4.30 p.m.. His sister was ahead and his mother was behind him followed by Rukmi Devi. When Ashok Kumar was walking along a narrow path on the bank of Nullah then Hari Dutt came from behind and pushed Ashok Kumar towards the Nullah. Ashok Kumar fell on the path on its edge and when he was trying to get up, accused gave a second push thereby Ashok Kumar had fallen into the Nullah which was about 30 feet below from the path from where he was pushed down. Ashok Kumar was said to be carrying a thermos bottle and on raising cries, his mother, sister, Rukmi Devi and Atma Singh Chauhan came down to see him. Atma Singh came down to the spot where he had fallen and others remained on the path. Mother started raising cries. After about 20-25 minutes a number of persons from the village came to retrieve him. Roshan Lal, Daya Nand, Atma Ram, Ram Lal, Sesh Ram, Sohan Lal, Rajinder etc., who were present on the spot carried Ashok Kumar from Nullah to road head. Ashok Kumar had sustained fracture of his right leg and right arm and was taken to Civil Hospital, Kothkhai. Accordingly, FIR No. 128 of 1997 was lodged. After investigation of the case, the 3 accused was charged for the offence under Section 307 IPC to which he pleaded not guilty and claimed to be tried. 5. In order to prove its case, the prosecution examined as many as 11 witnesses. Whereas, the accused in his statement under Section 313 Cr.P.C. has denied the prosecution case. 6. We have heard the learned Additional Advocate General for the State and the learned counsel for the accused and have perused the record. 7. Out of 11 prosecution witnesses, only five witnesses, namely PW-4 Ashok Kumar injured, PW-3 Om Parkash, Pradhan of Gram Panchayat, PW-5 Uttami Devi, the mother of the injured, PW- 6 Atma Singh alleged eye witness and PW-7 Rukmi Devi, who allegedly went with the injured to fetch hay, are material witnesses for determining the guilt or otherwise of the accused. Other witnesses are formal in nature. They are PW-1 Daya Nand, PW-2 Anant Ram in whose presence blood stained clothes and pieces of broken thermos bottle and a portion of hay were taken into possession, PW-8 Sharif Mohammad, who investigated the case, PW-9 ASI Balwant Singh, who arrested the accused, PW-10 HC Hitender Singh, who formally registered the case on the basis of statement of Ashok Kumar under Section 154 Cr.P.C. and PW-11 Dr. Sarita, who conducted the medico legal examination of the injured. 8. In cross-examination, PW-4 Ashok Kumar has stated that bundle of grass was tied on his back with a rope and height of the load was above his head. The path from where he was going is a narrow one and two persons cannot walk side by side. At the point where the incident had taken place, was such path that two 4 persons can easily walk side by side but the place where the alleged incident took place two persons cannot cross or walk side by side without coming into contact with each other. PW-4 Ashok Kumar in his further cross-examination has stated that Sushma was about 20 feet ahead of him and his mother and Rukmi Devi were behind him. According to the testimony of PW-4 Ashok Kumar when the first push was given to him, he fell on the path with his face and front of the body upward. The people who came to his rescue were not attracted by his cries or the cries of his mother and sister. His mother and sister went to the village and brought the people to the spot. PW-4 Ashok Kumar has further stated that he had apprised the police at the time of making statement Ext. PD that Atma Singh also arrived at the scene, who is his ‘Mausa’, i.e. his mother’s sister’s husband. PW-4 has further stated that he was taken to hospital in a van accompanied by his mother and three other persons named Parkash Chand, Roshan Lal and Jeet Singh. 9. PW-3 Om Parkash stated to be Pradhan of Gram Panchayat, Gumma has stated that on 18.11.1997 at 4.30 p.m. on receiving a telephonic call, he reached the spot. When he was going to the spot, injured Ashok Kumar had already been shifted from the spot to the road head where he observed victim in an injured condition and he had carried the victim to the hospital. Whereas, PW-4 Ashok Kumar in contradiction to the statement of PW-3 Om Parkash has stated that the persons who came to the spot, namely Roshan Lal, Daya Nand, Atma Ram, Ram Lal, Sesh Ram, Sohan Lal, Rajinder etc. carried him from the Nullah to the road side and victim was taken to the Civil Hospital, Kotkhai. PW-4 has not stated that he was taken to the hospital by PW-3 Om 5 Parkash. According to PW-3 Om Parkash, Atma Singh, Jeet Ram, Daya Nand, Rajinder Singh, the mother and sister of the injured and several other persons were present at the spot when PW-4 Ashok Kumar was taken to the hospital. PW-3 in his cross- examination has stated that during Panchayat elections Hari Dutt, the accused had favoured his opponent Sohan Lal and accused Hari Dutt is related to Uttami Devi, the mother of victim and Hari Dutt is nephew or cousin of Uttami Devi. 10. PW-5 Uttami Devi while supporting the prosecution case has stated that Ashok Kumar was pushed from behind by Hari Dutt. He was hiding in the bushes by the side of the path by which Ashok Kumar and others were returning and Hari Dutt pushed her son Ashok Kumar down the path whereby he had fallen down into Nullah and started crying and PW-5 shouted that nothing had happened and he need not worry. According to PW-5, the water of the Nullah had turned red with the blood of her son. PW-5 and her daughter had gone to the village to call the people to rescue her son. PW-5 had gone to village Anu to call the people while her daughter had gone to village Nihara. According to PW-5, after pushing Ashok Kumar, the accused ran away towards his orchard which was in the direction of ‘Ghasni’. As per statement of PW-5 made in her cross-examination, when she returned to the spot, Rukmi Devi, Atma Singh, Partap Singh, Sesh Ram, Roshan Lal, Raju, Nand Lal, Daya Nand, Sohan Lal, Jai Ram, Ram Lal, Nitu etc. were there. According to PW-5, Om Parkash had been called telephonically by her daughter Sushma. 11. PW-6 Atma Singh while supporting the prosecution case has stated that on the day of incident, he proceeded towards 6 the direction from where the cries had erupted and Sushma had also joined him from the upper side. When I was going in the direction where Ashok Kumar had fallen into the Nullah, PW-6 had seen the accused running towards ‘Ghasni’ of Pritam Singh. PW-6 Atma Singh has further stated that he had lodged a report with the police against the accused, his father and his brother. They were tried in the Court at Theog and after trial, the accused, his father and brother were acquitted in that case. PW-6 has further stated that the accused and his father were acquitted as he did not pursue his case. From the testimony of PW-6, it appears that he was in inimical terms with the accused. 12. PW-7 Rukmi Devi has stated that on the day of occurrence, Hari Dutt had appeared from the bushes on one side and pushed Ashok Kumar who fell into the Nullah below the path. In her cross-examination, PW-7 has stated that Sushma was ahead by 20-25 feet, Uttami Devi was 30-35 feet ahead and PW-7 was 40 feet behind Uttami Devi. According to PW-7, Hari Dutt was socially boycotted by them, as the stone laid at the temple by the elder brother of the husband of Rukmi Devi had been broken by the accused and since then PW-7 etc. were boycotting the accused. 13. From the scrutiny of the prosecution witnesses and the material on record, we notice that there was enmity with the accused as the accused was not having chance to get the landed property of maternal father of injured Ashok Kumar. In such condition, the version of the prosecution becomes unbelievable. From the testimony of PW-4 Ashok Kumar, it may be noted that on first push given by Hari Dutt, he fell down and when he tried to stand, he was given the second push and he had fallen with his 7 face downwards. In first push, when Ashok Kumar fell on the path itself, his face was up towards sky but on the second push, his face was downwards. 14. Undisputedly, PW-4 Ashok Kumar was carrying hay tied with his back and it was in such condition which was above his neck then in second push, when he had fallen down keeping his face downwards, in that condition it was difficult for Ashok Kumar to see the face of Hari Dutt by turning his neck. More so, when PW-4 Ashok Kumar in his cross-examination has admitted that the height of load of hay being carried on his back was above his head, meaning thereby that he was not able to look behind so his statement that the accused had given him push from behind cannot be believed. More so, when on the first push given by accused Hari Dutt and PW-4 Ashok Kumar had fallen down, nothing could be revealed that the hay being carried on his back had already fallen down and he was trying to get up without the bundle of hay at his back and he saw Hari Dutt giving second push. As such, the testimony of injured Ashok Kumar itself becomes doubtful. The versions of his mother, PW-5 Uttami Devi and PW-6 Atma Singh also becomes doubtful as in the earlier version of Ashok Kumar, his mother Uttami Devi, Rukmi Devi and other residents of village Anu and Nihara were attracted to the place of occurrence by his cries, which he raised at the top of his voice. It was also noticed that Rukmi Devi and PW-3 Om Parkash are on inimical terms with the accused. According to PW-7 the family members boycotted Hari Dutt in reference to laying a stone on the temple. PW-7 and PW-6 both have deposed that they saw the accused fleeing towards the ‘Ghasni’ of one Pritam Singh, but this fact does not figure in their 8 statements under Section 161 Cr.P.C, Ext. DC and Ext. DB respectively with which they have duly been confronted. As per testimony of PW-7 Rukmi Devi, she saw the accused surfacing from hide out in the bushes but this fact does not find mention in her statement Ext. DC, under section 161 Cr.P.C. with which she was duly confronted. 15. Apparent contradictions, improbabilities and inconsistencies which have been noted by the learned trial Court on the basis of which the learned trial Court has rightly arrived at the conclusion that the accused did not push Ashok Kumar injured, 16. In view of the above noted inconsistencies and contradictions emanating from the prosecution witnesses, we also arrive at a conclusion that the prosecution witnesses and Ashok Kumar were on inimical terms with the accused and the motive of the accused pushing Ashok Kumar injured is also not proved as per prosecution version. There is no scope of interference in the judgment of the trial Court. Therefore, the appeal being devoid of any merit is dismissed. (R.B. Misra) Judge. (V.K. Sharma) Judge. July 1, 2010. (cr)