IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.Appeal No.355 of 2002. Judgment Reserved on: 01.08.2011. Date of decision: 25.08.2011. State of H.P. … …Appellant Versus Sanjay Kumar Singh and Others … …Respondents Coram The Hon’ble Mr.Justice R.B. Misra,J. The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 Yes. For the Appellant: Mr.R.K. Sharma, Senior Additional Advocate General with Mr.Rajinder Dogra, Additional Advocate General. For the Respondents: Mr.Sunil Mohan Goel, Advocate. Per Dev Darshan Sud,J. The State challenges the acquittal of the respondents herein by the learned Sessions Judge, Kullu. 2. The respondents were prosecuted for offences under Sections 302, 323 read with Section 34 IPC for causing the death of one Sunder Singh, Security Guard in Malana Power Project at Dhunkhra (Jari). The case urged by the prosecution was that in the intervening night of 30th/31st July, 1999 in furtherance of the 1 Whether the reporters of Local Papers may be allowed to see the judgement? 2 common intention of the accused they acted in concert and caused the death of Sunder Singh by beating him up. It was urged that Sunder Singh deceased alongwith Dola Ram PW-1, Chaman Lal PW-2, Nanak Chand PW-3, Rafiq PW-4 and Gian Chand PW-7 was working as Security Guards in the Malana Power Project at Dhunkhra. Gufar Khan PW-10 was Security Supervisor in the Project. On the fateful night of 30th/31st July, 1999, PW-4 Rafiq alongwith Sharif Khan were on night duty. At around 10.30 P.M., PW-1 Dola Ram, PW-2 Chaman Lal, PW-3 Nanak Chand and the deceased came there and picked up a fight with Rafiq PW-4, who was on duty. Prior to this, Chaman Lal, Dola Ram, Nanak Chand and deceased Sunder had consumed liquor at a Dhaba in Dhinkhra, after which they entered into a drunken brawl with Rafiq. 3. Dola Ram PW-1 was on duty from 8.00 P.M. to 8.00 A.M. at the main store. He learnt from Pradeep Kumar about a fight having broken out between these persons in the Power House. He intimated Om Chand, Gian Chand, the other Security Guards and left for the Power House. On the way Malkiat, Surinder and Pardeep, who were also working as Security Guards, joined him. When they reached near the Power House, they heard Sharif crying and found Dola Ram, Nanak Chand, Sunder Singh deceased, Chaman Lal and Rafiq Khan fighting with each other. At this point of time some Company officials, including Ashok Chauhan, Varinder Sharma came to the spot and started beating Sunder Singh, who 3 was saved from their clutches by Dola Ram who took him away. But, this did not satisfy the officials of the Company, T.P. Rajan, Pawan Kumar Patyal, Ashok Chauhan, Varinder Sharma and S.K. Singh, who it is alleged took the deceased Sunder Singh to the Company Mess, where S.K. Singh slapped the deceased. At that point of time Dola Ram left for his duty. 4. The prosecution case is that Chaman Lal, Dola Ram and Nanak Chand had accompanied the accused and the deceased to the Mess. Thereafter Dola Ram, Nanak Chand and Chaman Lal left for their houses at Jari from where PW-10 Gufar Khan, Security Supervisor brought them to Company Mess where another fight broke up and it is alleged that they were beaten up by S.K. Singh. It is stated that Sunder Singh was lying unconscious in the vehicle parked outside the Mess. All of them including Rafiq and Sharif Khan and deceased alongwith Chaman Lal and Nanak Chand were taken to the Police Post, Manikaran. Deceased Sunder Singh was lifted by Chaman Lal, Nanak Chand and Dola Ram on their back who was unconscious and bleeding from the nose and mouth. On the narration of Gufar Khan PW-10, rapat No.31 Ex.PW- 16/A was recorded on the statement of Gufar Khan and PW-15 ASI Kanwar Singh investigated the matter. Ex.PA, statement under Section 154 Cr.P.C. of Dola Ram PW-1, was recorded. The accused were charged for offences under Sections 302, 323 read with Section 34 IPC and thereafter the case proceeded. 4 5. The learned trial Court concluded on the evidence on record that it has been proved that a fight broke up amongst the Security Guards who were admittedly drunk. The accused facing trial are the officials of the Company. PW-1 Dola Ram, PW-2 Chaman Lal, PW-3 Nanak Chand had supported the case of the prosecution. They also proved that the deceased, PW-2 Chaman Lal and PW-3 Nanak Chand got drunk at Dhunkhra, thereafter they came to the Power House and picked up a fight with PW-4 Rafiq and PW-10 Sharif Khan and other Security Guards. The learned trial Court noted down a number of contradictions in the case of the prosecution evidence and acquitted the accused of all the offences. 6. The State is now in appeal challenging the acquittal on a number of grounds. The grounds urged are; (a) that the judgment is conjectural; (b) the evidence has not been properly appreciated and (c) the evidence of the prosecution witnesses has been rejected for untenable reasons. It is urged that the statements of Dola Ram, Chaman Lal and Nanak Chand, who had accompanied the deceased at the time of occurrence, had been discarded without any reason though they were persons who had accompanied the deceased and were well conversant with the facts of the case. 7. In a nutshell, the case set up is one of non- appreciation of evidence of material witnesses which according to the prosecution conclusively proves the case. Adverting to the evidence of PW-1 Dola Ram, what 5 we find is that he states in his cross-examination that quarrel had taken place between two groups of Security Guards in which Sunder Singh had suffered injuries. He also states that he found all Guards beating up Monu alias Rafiq Khan and that they all were drunk except Monu. He then admits that it was dark night and in that dark night he could not recognize all the persons. He states that 25/30 Company Officials had reached the spot. He says that the deceased had suffered injuries in this incident. He was sought to be corroborated on all material particulars by PW-2 Chaman Lal, who again states that he alongwith the deceased, Nanak Chand, Dola Singh and Tara Chand has consumed liquor in Fouji Dhaba. After this they went to the Power House where he confronted Monu alias Rafiq Khan as to why he (Monu) had beaten up this witness three days prior to this incident. He says that instead of replying he set upon him, when Sunder Singh, Dola Ram and Nank Chand tried to intervene and separated him from Monu. At this he was beaten up by all of them. They proceeded to the main road where they met Dola Ram and Om Dutt. 20/25 officials from the Company also came to the spot. According to him Ashok Chauhan and Varinder Sharma caught hold of deceased Sunder Singh and threw him on the road and kicked and punched him. He says that, “In addition to them there were also officials of the company which I could not recognize in darkness.” He admits in his cross-examination that about 25/30 6 Company officials had reached the spot after hearing about the ruckus caused by the fight. He admits being a party to the quarrel which took place between two groups of Security Guards. One group comprising of two Khans and the other group comprising of himself, Nanak Chand, Dola Ram and Sunder Singh. He was emphatic when he says that in that fighting between two groups Sunder Singh did not receive any injury. PW-3 Nanak Chand also admits that he had consumed liquor alongwith the deceased and other persons, it was dark near the Power House and that two groups of Security Guards have fought with each other. He has been declared hostile and in his cross-examination by the prosecution, no material fact has been elicited. 8. Two other witnesses need to be noticed and they are; PW-6 Dr.K.B.L.Srivastava, Medical Officer, Zonal Hospital, Kullu and PW-4, Rafiq Khan who, was the victim of the attack, states that he was dragged by Chaman Lal, Dola Ram, Nanak Chand and the deceased to the road where he was beaten up. All these persons were drunk at that time. He states that but for the intervention of the other people, the aggressor party would have finished him. PW-9 Dr.Piysh Vaidya, Medical Officer, states that he was working as Medical Officer in Civil Dispensary, Manikaran. On 31.7.1999, he examined the deceased and found clotted blood on his left nostril. There was no sign of other external injury. Peripheral pulses were absent. Blood pressure 7 was not recordable. He could not detect any sound of breathing and heart beat. The pupils were fixed and reactive to light. There was no response to painful stimulus and Sunder Singh was dead at that time when examination was conducted. He proved on record Medico Legal Certificate Ex.PW-9/A. The most important evidence on the record is that of PW-6 Dr.K.B.L.Srivastava, Medical Officer, Zonal Hospital, Kullu, who conducted the postmortem on the deceased. Ex.PW-6/A is the postmortem report which says that the cause of death was `irreversible shock’. However, the final decision was reserved till the Chemical Examiner Report comes. His final opinion is important. It reads:- “Opinion regarding deceased Sunder Singh s/o Pyare Lal, where post mortem was conducted on 31.7.99, as required by police vide Letter No.20955/2043/5A/PS Kullu dated 17.5.2000 from S.P. Kullu to CMO, Kullu forwarded to us for the needful. In this connection we are in opinion that the severity of these injuries are not sufficient to cause death. However the site of one of the injuries is near to the body points of afferent sympathetic stimulation causing reflex vogal inhibition (i.e. Pharynx, Larynx & Carotid sinus). The death of irreversible shock due to reflex vogal inhibition (so called reflex cardiac arrest or nervous 8 apoplexy or Neurogenic shock) can be due to minor trauma or relatively simple and harmless peripheral stimulations which can be unexpected at those circumstances and can be at many sites on human body which are not apparent in post mortem examination due to its minor severity and no changes due to sequence of death. Moreover, such reflex shock leading to its irreversibility and death is exaggerated by – (1) Emotional stresses (2) Lowered voluntary cerebral control for such reflex responses. (3) Sudden unexpected and abnormal nature of trauma. (4) Trauma at other site of body from where afferent synapses for vogal nucleus goes. Above all there is always a great variations in individual susceptibility to trauma, situation and circumstances. Sd/- (1) DR K.B.L. SRIVASTAVA M.O. D.H., KULLU. Sd/- (2) DR.BALDEV KUMAR M.O. D.H. KULLU.” 9. This is the entirety of the evidence on record. We are confronted with a situation where there seems to be a free fight between two groups who were separated by 25/30 people who reached the spot. 9 Postmortem report is conclusive and does not establish as to how the injury was caused leading to death. On the identification of the accused, we have already noticed that PW-1 Dola Ram admits that it was a dark night. This infact is corroborated by the statement of PW-2 Chaman Lal. In these circumstances, it is not possible for these witnesses to have identified the deceased. It is also undisputed that the deceased alongwith PW-1 Dola Ram, PW-2 Chaman Lal and PW-3 Nanak Chand had entered into a confrontation with Monu alias Rafiq Khan which was followed by a brawl. We find that the learned trial Court has rightly appreciated the evidence in this context and in the fact situation in which this incident occurred held that offence under Section 302 IPC was not established. 10. Learned Additional Advocate General submits that even if it is urged that there was no intention of killing the deceased, the injuries caused were sufficient to have caused death in the normal circumstances and in these circumstances the accused are guilty of homicide not amounting to murder or in any event of offences under Section 323 IPC. 11. Before adverting to other submissions, we note that in Ex.PA the names of the accused have not been entered or stated. How and under what circumstances they were later on arrayed as accused is also not clear from the record. It is by now well settled that where there are two views possible in 10 appeal arising out of the acquittal, the one favouring the accused has to be preferred except in circumstances where the appreciation of the evidence is perverse. (See: Narinder Singh and Another vs. State of Punjab (2000)4 SCC 603, Bhagwan Singh and Others vs. State of M.P. (2003)3 SCC 21, Joseph vs. State of Kerala 2003 SCC (Crl.) 356, and Sukhdev Singh and Another vs. State of Punjab (2010)13 SCC 656). Having perused the statements of the three witnesses, as noticed by us, we do not find that they establish either the complicity of the appellants herein in any murderer assault on the deceased or intention to cause injury. 12. We seen no perversity in the appreciation of the evidence or in the conclusion arrived at by the learned Court below. There is, thus no merit in this appeal which is rejected. Bail bonds furnished by the respondents-accused are discharged. (R.B. Misra) Judge August 25, 2011 (Dev Darshan Sud) (aks) Judge