IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 41 of 1995 Reserved on: 3.3.2009 Date of decision: 9.03.2009 State of H.P. ... Appellant Versus Prem Lal & Ors. … 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: M/s Anup Chitkara and Bhupinder Ahuja, Advocates. Per V.K. Ahuja , J.: This is an appeal filed by the State of H.P. under Section 378 Cr.P.C. against the judgment of the Court of Ld. Sessions Judge, Kangra at Dharamshala, dated 27.1.1994, 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 respondents No. 1, 2 and 4 are real brothers. Their sister Rooma Devi was married to deceased Balbir Singh. She died on 5.11.1991 due to burn injuries. On the basis of report made by the mother of the deceased, namely, Popli 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 Devi, a case was registered against Balbir Singh who was arrested in the said case. The said Balbir Singh performed his second marriage on 11.1.1992. It is further the prosecution story that on 14.11.1992 at 10.50 P.M., a report was lodged with the police by one Sher Singh, brother of deceased Balbir Singh. He alleged that his brother Balbir Singh had brought his wife alongwith her brother to his house since they had been invited for dinner by their father. After taking meals, at about 8.00 P.M., when Balbir Singh was going to his house alongwith his wife and brother, he was called from his house that since it was dark outside and he was going to his house, he should bring a torch and leave him at his house. It was further alleged that Balbir Singh and the complainant started proceeded further and when Balbir Singh reached the corner of the house of complainant Sher Singh, suddenly Nand Lal, respondent, came from the dark and caught hold of his brother Balbir Singh from the neck and he saw in the torch light that Prem Chand and Gian Chand were also standing there and they caught hold of his brother and Gian Chand proclaimed that they will not allow him to celebrate his ‘Suhagrat’ and will take revenge for their sister. It was further alleged that Gian Chand was having a drat in his hand and started giving blow with the drat on the head and Balbir Singh fell down and he raised an alarm. On hearing his cries, his father and younger brother Tarsem and one Raj Kumar came to the spot and Balbir Singh was lying on the ground in an unconscious state. The accused persons ran away and the Balbir Singh was taken on a cot to the hospital and the Doctor declared him dead there. On this report, a case was registered and after investigation, the challan was filed before the learned Judicial Magistrate, who committed the case to 3 the learned Sessions Judge, who tried the respondents, leading to their acquittal. We have heard the learned counsel for the parties and have gone through the record of the case. The submissions made by the learned Deputy Advocate General for the appellant were that the guilt of the respondents had been fully established from the statements of two eye witnesses brother and father of the deceased and the learned trial Court had relied upon the minor contradictions and infirmities in holding that the prosecution has failed to prove their case, which findings are incorrect and as such, are liable to be reversed. We have been taken through the evidence in detail by the learned Deputy Advocate General for the appellant. We have also gone through the observations made by the learned trial Court incoming to its conclusion. We have also considered the submissions raised by the learned counsel for the parties and after considering all these facts, we hold that there is no merit in the appeal for the reasons given below. The learned trial Court had given various reasons in disbelieving the prosecution case and we will refer to each of the conclusion drawn by the learned trial Court, whether it can be the basis for holding that the prosecution has failed to prove their case. The first reasoning given by the learned trial Court was that the statement of two eye witnesses, namely, PW-3 Sher Singh, brother of the deceased and PW-4 Nikku Ram, father of the deceased do not corroborate one and another and as such, these were not relied upon. It was rightly observed by the learned trial Court that in the FIR Ext. PC recorded on the basis of the statement made by PW-3 Sher Singh, at 4 about 10.50 P.M., after about two hours and fifteen minutes of the occurrence, PW-3 had stated that his father Nikku Ram and brother Tarsem arrived at the scene of occurrence on hearing his cries, which he had raised after the deceased had been attacked twice by accused Gian Chand. It was rightly observed that accordingly as per Ext. PC, PW-4 Nikku Ram had not seen the occurrence but had come to the place of occurrence after the deceased had been attacked. PW-3 Sher Singh made improvement in his statement made in Court when he deposed that that when the deceased was being dragged by the accused Nand Lal, PW-4 was standing in his Angan. Another improvement was made by PW-3 over his statement Ext.PC that the outer electric bulb of his house was on. The learned trial Court has observed that PW-3 Sher Singh in his statement made in the Court has stated that when the deceased was being dragged by the accused Nand Lal, PW-4 Nikku Ram was standing in his Angan. Another improvement made was that when PW-3 Sher Singh stated in his statement Ext. PC with regard to the fact that the outer electric bulb of his house was on. It was observed that distance between the house of the deceased and that of the accused is only ten feet. It was rightly held that if the outer electric bulb of the house of PW-3 was on, there was no need for the deceased to have been called for a torch from PW-3. It appears that the story of torch has been introduced just to show the presence of PW-3 at the spot. In our opinion, these observations made by the learned trial Court are correct. PW-4 Nikku Ram had stated that he called PW Sher Singh for a torch since there was no light in his house and Sher Singh came with the torch. He heard a noise being raised by Sher Singh and 5 when he saw, he observed that Balbir Singh had been caught hold of by respondents Prem Chand, Nand Lal and Nanak Chand. While respondent Gian Chand gave two blows with the help of a drat on the head of Balbir Singh. He saw the occurrence in the torch light, which was in the hand of PW-3 Sher Singh. However, in his statement Ext.DA made to the police that on hearing the cries raised by PW Sher Singh, he had seen the accused running away from the spot. Thus, PW-4 was not held to be an eye witness of the occurrence. His statement was recorded on 19.11.1992. The explanation given by PW-4 Nikku Ram was that he had become unconscious on seeing the occurrence and when he regained consciousness on the next day, he went to the Police Station, but the Investigating Officer was not available since he had left for the investigation of the present case. He stated that he met the police only on 19.11.1992 when his statement was recorded. The statement of PW-4 Nikku Ram that he met the police only on 19.11.1992 stands belied by Ext. PB, the inquest report, prepared on 15.11.1992. It was attested by PW-4 Nikku Ram as a witness, which shows that he was available to the police on 15.11.1992. There is no explanation as to why his statement was not recorded by the Investigating Officer as observed by the learned trial Court. PW-13 Suresh Chand, S.I., has come up with another explanation that when he prepared inquest report Ext. PB, PW-4 Nikku Ram was semi-conscious and though he had obtained his thumb impression on Ext. PB, he was not in a position to make a statement. It was rightly held by the learned trial Court that this version on the face of it is false and cannot be accepted. The un-explained delay in recording the statement of PW-4 Nikku Ram, though he was available to the police 6 casts a shadow of doubt about the presence of PW-4 Nikku Ram at the spot at the time of occurrence. The observations made to our mind are correct including the conclusions drawn by the learned trial Court. The second point taken by the learned trial Court was that as per the prosecution case, the vital blows two in number were given to the deceased by accused Gian Chand with the help of a drat. However, PW-13 Suresh Chand, S.I., had recovered two drats one Ext. P-6 at the instance of accused Gian Chand in pursuance of disclosure statement Ext. PO alleged to have been made by him and the other drat Ext.P-7 was got recovered in pursuance of the alleged disclosure statement Ext.PH made by accused Nand Lal. Both these drats were sent to Forensic Science Laboratory, Shimla, for examination and according to report Ext. PV human blood was found on both these drats. Only one drat Ext.P-6 was used by Gian Chand for causing the fatal injuries. How blood stains also came on the drat Ext. P-7 and there is no explanation for it. There is nothing on record to show that stains of blood found on drats Ext. P-6 and Ext. P-7 were of the same blood group as that of the deceased. To our mind, this clearly shows that efforts had been made to plant drat with blood stains on it, but there was no occasion for the recovery of the second drat at the instance of accused Nand Lal and no grouping of blood was done on the drats done with that of the deceased, which clearly leads to the conclusion that the efforts had been made to plant evidence making the prosecution story doubtful. The third point taken by the learned trial Court was that it is in evidence of the prosecution witnesses that the deceased was returning home after having taken his dinner. However, according to the opinion of 7 PW-2 Dr. M.S. Zutsti who performed the postmortem, there was no fresh food in the stomach of the deceased. He stated that the deceased had not taken any meals within two hours before his death. This also makes the prosecution story doubtful. The fourth point taken by the learned trial Court was that nothing has come up on record as to where the wife of the deceased and her brother were at the time of the occurrence, when they were returning home together after taking dinner. The learned trial Court observed that the silence on the part of the prosecution witnesses as to the whereabouts of the wife of the deceased and her brother speaks volumes regarding the falsity of the prosecution case. No explanation has been given by the Investigating Officer PW-13 S.I. Suresh Chand in this regard. It has come in cross-examination of PW-13 to this effect that it had come up in his investigation that newly wedded wife of Balbir Singh was sitting in the house of Nikku Ram at the time of occurrence aongwith her brother. He gave explanation for their non-examination that they had left that place for the house of her mother on 15.11.1992. Therefore, he had associated them in the investigation but did not record her statement under Section 161 Cr.P.C. He denied the suggestion that they remained in the house of Nikku Ram for one week thereafter. The non-examination of these material witnesses had also weighed with the learned trial Court in disbelieving the prosecution story. The learned trial Court had also referred to one contradiction since PW-3 Sher Singh and PW-4 Nikku Ram have stated that the deceased was taken in a cot, while Medical Officer PW-1 Dr. Chaudhary has stated that the deceased was brought to him in a vehicle and he examined the deceased in the vehicle and declared him dead. 8 The non-examination of the driver also weighed with the learned trial Court. In our opinion, this is not a major contradiction since the deceased might have been taken on a cot firstly as per the prosecution witnesses and thereafter, he might have been taken in a van and no questions were put up to the prosecution witnesses if the deceased was shifted to a van. The Medical Officer had rightly observed that the deceased was brought in a vehicle and this cannot be termed as a major contradiction. Non-examination of the driver cannot be taken as an additional ground for disbelieving the prosecution witnesses. We are not inclined to accept this reasoning given by the learned trial Court. The next point considered by the learned trial Court was false implication of accused Nanak Chand, since DW-2 Dr. Arun Kumar has deposed that accused Nanak Chand was operated upon for intestinal obstruction and he found difficulty in walking and it was observed that it cannot be believed that accused Nanak Chand was a party to the crime and he had run away from the spot at full speed after the occurrence. Thus it was held by relying upon the decision of the Apex Court in State of U.P. Vs. Moti Ram, 1990 CAR 257, that since some of the accused persons named by the eye witnesses have been falsely implicated, it will not be safe to place reliance upon their testimony regarding the complicity of other accused without corroboration. It was taken as another ground to disbelieve the prosecution story and we have no reasons to disagree with the learned trial Court in this regard since the possibility of false implication of accused Nanak Chand cannot be ruled out in the facts and circumstances of the case. On appraisal of the evidence led by the prosecution and above discussion, we are of the opinion that the findings recorded by the 9 learned trial Court in holding 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 accordingly hold that there is no merit in the appeal filed by the appellant, which is dismissed. Bail bonds furnished by the respondents shall stand discharged forthwith. ( Deepak Gupta ), J. March 9, 2009 ( V.K. Ahuja ), J. (BSS) 10