1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 362 of 1999 Decided on September 21, 2010 __________________________________________________________ State of H.P. …Appellant. Versus Gurmito & Others ...Respondents. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge. ¹Whether approved for reporting? For the appellant: Mr. R.K. Sharma, Senior Additional Advocate General, with Mr. Rajinder Dogra, Additional Advocate General. For the respondents: Mr. Dinesh Thakur, Advocate. Justice R.B. Misra,J. (Oral) The present Criminal Appeal has come up for adjudication after the grant of leave to appeal under Section 378 (3) of the Code of Criminal Procedure has been granted in reference to judgment dated 1.5.1999, passed by Learned Sessions Judge, Kangra at Dharamshala, H.P., in Sessions Case No. 17-N/VII/98, under Section 302 and 201 read with Section 34 of the Indian Penal Code, acquitting the alleged accused/respondents. 2. The accused-respondents were charged for the aforesaid offences in respect of committing murder of Jagbir whose dead body was lying across river Chakki, on which information one Tilak Ram and Smt. Lilo alongwith others went to the spot and thereafter the police was informed. 2 3. In order to prove its case, the prosecution has examined as many as 20 prosecution witnesses, whereas, the accused through their statement under Section 313 of Cr.P.C., have shown their innocence and denied the prosecution case. 4. The prosecution case is mainly relying upon the testimony of prosecution witnesses namely PW.2 Tilak Raj and Bhama alias Inderjit (PW.4). PW.1 Dr. M.K. Saxena conducted the postmortem on the dead body of Jagbir and has noted the injuries and given opinion that injury No.1 is possible with Danda Ex.P1 and injury No.2 can be caused if warm water is thrown and injury No.3 can be caused if the pressure is applied on the neck with hands. 5. PW.2 Tilak Raj has stated that on 6.9.1996, at about 8.30 or 9.00 P.M., Billu came to him when he was at his shop and told that Jagbir had died and the body is lying across river Chakki. On such information, PW.2 alongwith Billo Pradhan, Billo and other persons from the village went to the spot and observed the dead body lying with his face downward. After turning the body, there were burn injuries on the body of the deceased i.e. on the chest close to the neck. On enquiry, from the public which had collected there, Bama told that Jagbir had come to the Bhatti of Gurmito in the evening and he used to take excessive drink and there was a quarrel there. Then there was scuffle between Gurmito and deceased and also Gurmito gave him a danda blow. At that time 50-60 persons were gathered on the spot where dead body was lying, however, statement of PW.2 was recorded. 3 6. PW.3 Smt. Lilo Devi on getting the information also went to the spot and found dead body lying there, however, she could not know the cause of death. PW.4 Inderjit has stated that on 6th June, three years back, he observed rush and many people collected and when he went to the spot dead body of Jagbir was lying there. Police also came there and they called his aunt Gurmito, Laddi etc. and took them to the police station. However, he did not know as to how Jagbir has died. 7. PW.5 Hans Raj has declared hostile. PW.6 Billo has stated that Jagbir was his first cousin and his dead body was found near village Majra and then PW.6 came home and informed Tilak Raj and Lillo. Accordingly, PW.6 made a report to the police. PW.7 Parveez Singh associated by the police during investigation. PW.8 Kuldeep Rai, photographer, PW.9 Mukhtiar Singh, Constable, PW.10 Constable Nasib Singh, PW.11 Head Constable Bhagirath, PW.12 LHC Satish Kumar, PW.13 Constable Sanjeev Singh, PW.14 Constable Tilak Raj, PW.15 S.I. Khushi Ram are not very material, as nothing material is emanating from their testimony in support of the prosecution case. 8. PW.16 Inspector Satwant Singh has endeavoured to support the prosecution case, has stated that he took the statement of Tilak Raj (PW.2) Ex.PW.2/A and moved an application Ex.PW.1/A for conducting the postmortem examination. PW.17 ASI Mehar Singh has prepared the spot maps Ex.PW.17/A and Ex.PW.17/B and also prepared the sketch of danda Ex.P1 Ex.PW.17/C. PW.18 Inspector Jagdish Chand has stated that he recorded the statements of Leelo Devi, Tilak Raj, 4 Tarveej Singh Patwari, Bhagirath, Mukhtiar Singh, Nasib Singh, Satish Kumar and Sanjeev and also prepared the challan on completion of investigation. 9. The only prosecution witness PW.2 Tilak Raj, is stated to have seen the dead body of Jagbir (deceased) though never seen anybody assaulting the victim / deceased, has only stated that he was told by Bhama alias Inderjit that Jagbir had come to the Bhatti of Gurmito in the evening and involved in scuffle when Gurmito gave him danda blow, except this, no witness is available of any kind in respect of the material which can be helpful to know the cause of death of Jagbir. However, Bhama alias Inderjit has examined as PW.4 had not supported the prosecution case. However, in the present case chain of circumstantial evidence is not supporting the case of the prosecution beyond reasonable doubt to make the link with the assault with anyone what to say to the accused-respondents. Apparent contradictions are being emanated from the testimony of prosecution witnesses, when PW.2 Tilak Raj has stated that Bhama alias Inderjit (PW.4) had told that Jagbir had come to the Bhatti of Gurmito in the evening and was involved in the scuffle when Gurmito gave him danda blow, whereas no such version is emanating from the testimony of PW.4. 10. In view of the facts and circumstances, there are material contradictions and inconsistencies in the prosecution witnesses, therefore, the prosecution cannot be said to have proved its case beyond reasonable doubt and the learned Sessions Judge has carefully analyzed the prosecution witnesses 5 and has rightly arrived at a conclusion that the prosecution has failed to prove its case beyond reasonable doubt. In our considered view, there is no scope of interference in the findings given by learned Sessions Judge. In view of the aforesaid facts and circumstances, the present criminal appeal, being devoid of any merit, is dismissed. 11. The bail bonds furnished by the accused/respondents are hereby discharged. (R.B. Misra) Judge September 21, 2010 (V.K. Sharma) (Purohit) Judge