IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 229 of 1997 Date of decision: 17.08.2010 __________________________________________________________________ State of Himachal Pradesh … Appellant. Versus Darshan Lal … Respondent. __________________________________________________________________ Coram The Hon’ble Mr. R.B. Misra, J. The Hon’ble Mr. V.K. Sharma, J. Whether approved for reporting? __________________________________________________________________ For the Petitioner : Mr. Rajinder Dogra, Additional Advocate General. For respondent : Mr. Rohit Chauhan vice Mr. B.K. Malhotra, Advocate. __________________________________________________________________ Justice R.B. Misra, J. (Oral) The present Criminal Appeal has come up for consideration after leave the grant of leave to appeal under Section 378 (3) of the Code of Criminal Procedure in reference to judgment dated 24.08.1996, passed by the learned Additional Sessions Judge, Mandi, District Mandi, H.P. in Sessions Trial No. 24 of 1993, under Sections 328 and 380 of the Indian Penal Code, acquitting the alleged accused/respondent. 2. In order to adjudicate the present appeal, it is necessary to give the factual background of the case. As per prosecution story, on 19.08.1991, in the evening time four persons came to Hanogi temple and they were allowed to stay in Dharamshala (Dharamshala of temple). On 20.08.1991, all the four persons left the place after leaving their luggage in the room. Out of four persons, two persons came and took away the entire luggage while the other two came at about 8.30 a.m. after about two hours of the removal of the luggage by the other two. These two persons were in drowsy state of mind and were unable to walk properly. Ramesh Kumar started vomiting and showed some signs of improvement while the other could not recover. Both of them told that the other two persons administered them some medicine, telling that by taking this medicine they would be able to unearth the valuable wealth. Both these persons told Mohan Singh, Manager Hanogi Mata Temple, that the other two persons had administered them some medicine. At this, Mohan Singh, Manager, Hanogi Mata Temple wrote a letter to the Station House Office Aut. At about 10.30 a.m. police party came to the temple. After interrogating those two persons, Ramesh Kumar, took the police party to the place where the two were administered the poisonous substance and police took into possession one small plastic cane and one tumbler Ex. PW-1/B. It was found that accused Darshan Lal gave drink to Ram Kumar, and Suresh Kumar who started vomiting and when the glasses etc. were examined in the Forensic Science Laboratory, Bharari, Shimla, the contents were found of copper-sulphate (Nila-thotha) and the articles belonging to these persons were recovered from the house of accused in Haryana and after investigation the accused was challaned and sent up for trial for the offences punishable under Sections 328 and 380 of the Indian Penal Code. 3. PW-2, Dr. C.S. Chohan examined Suresh Kumar aged 20 years and also examined Ram Kumar and found that some poison was given to them. 4. PW-3, ASI Roop Lal has stated that case property was deposited with him on 12.09.1991. PW-4, Babu Ram has stated that he took the sealed parcel vide R.C. No. 54/91 and deposited the same in F.S.L. Bharari on 13.9.1991. PW-5, Inspector Hans Raj has 2 prepared the challan. PW-6, Kashmiri Lal has stated that police came and told to sign recovery memo. Ex. PW 6/A telling him that some clothes were recovered from accused Darshan Lal. But he was declared hostile at the request of learned Public Prosecutor. However, PW-6, Kashmiri Lal was also declared hostile. PW-7, Dharam Singh has stated that he had signed Ex.PW-6/A without reading its contents. 5. PW-8, Suresh Kumar has deposed that accused is distantly related to Ram Kumar. On 15.8.1991, he alongwith Ram Kumar went to the house of accused and on 16.08.1991, he, Ram Kumar and accused Darshan Lal alongwith one more person started for Himachal Pradesh. They reached Hanogi Mata on 19.8.1991 and stayed there for the night. In the morning, accused Darshan Lal took him and Ram Kumar towards “Nallah” on Kullu side and fourth man stayed in the temple. In the Nallah, the accused gave something from cane in one glass which they took and became un-conscious. They remained in Nallah for about half an hour and thereafter came to temple and found accused and his companion missing with luggage. 6. On scrutiny, the evidence led have not fully supported the prosecution case. Regarding administering of the poison that is Coper Sulphate “Nila-Thotha” to PW-8, Suresh Kumar and PW-9, Ram Kumar, there is no witness except the statements of these two witnesses. PW-8, Suresh Kumar and PW-9 Ram Kumar have stated that accused Darshan Lal took them to “Nallah” and told them to drink the liquid. But PW-1, Mohan Singh who gave first Information report to the police has stated that when these two boys Suresh Kumar and Ram Kumar came back, they told that two of their companions administered them some poisonous substance, telling them that by taking the medicine, they would be able to 3 unearth the valuable wealth. This shows that these witnesses either did not tell the truth to PW-1 Mohan Singh immediately after the occurrence or they were suppressing the truth from the Court for the reasons best known to them. Therefore, there statements cannot be believed and conviction of the accused cannot be made on the basis of their statement alone unless the same are corroborated by other witnesses. No doubt, Copper Sulphate “Nila-Thotha" was found from the sample taken out from bottle seized from “Nallah” by the police, but there is no evidence as to who has kept that bottle in the “Nallah” and no finger prints etc. were taken from the bottle to connect the same with the finger prints of the accused. Regarding coming of the accused with Suresh Kumar, PW-8 and staying the Dharamshala, Hanogi Mata, there is entry in the Register and the name of Darshan Lal accused was not recorded in the Register, whether he was accompanying Suresh Kumar, is not explained. 7. The recovery of articles from the house of accused Darshan Lal has not been proved as per prosecution case, because nothing has been proved against PW-6 Kashmiri Lal and PW-7 Dharam Singh. They have stated that as to why they should have deposed falsely against the prosecution or to help the accused, if recovery of the articles was effected in their presence on search of the house of the accused. Moreover, PW-6 and PW-7 were declared hostile. The prosecution story is a concocted story and has failed to prove the offences punishable under Sections 328 and 380 of the Indian Penal Code against the accused Darshan Lal beyond reasonable doubt. 8. After going through the prosecution witnesses and material on record as well as the impugned judgment, we find that prosecution has failed to prove its case and to bring home the guilt to the accused and the learned Trial Court has carefully analyzed the prosecution witnesses and has rightly arrived at a conclusion that the 4 prosecution has failed to prove its case beyond reasonable doubts. In our considered view, there is no scope of interference in the findings given by the learned Additional Sessions Judge. In view of the aforesaid facts and circumstances, the present criminal appeal, being devoid of any merit, is dismissed. 9. The bail bonds furnished by the accused/ respondents are hereby discharged. ( R.B. Misra ), J. (V.K. Sharma), J. August 17, 2010 Pritam 5