IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr. Appeal No. 453 of 1996 Date of Decision : March 31, 2010 State of H.P. …Appellant. Versus: Naresh Kumar …Respondent-accused. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant: Mr. Rajesh Mandhotra, Dy. A.G. For the respondent : Mr. Dinesh Thakur, vice Mr. Rakesh Jaswal, Advocate Deepak Gupta, J. (Oral). This appeal by the State is directed against the judgment dated 20.2.1996 delivered by the learned Sessions Judge, Chamba Division, Chamba, H.P., in Sessions Case No. 31 of 1995, whereby the accused has been acquitted of having committed an offence punishable under Section 302 IPC. Accused Naresh Kumar was earlier working in the Indian Army. After leaving the job, he had returned home and 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 was living with his father. According to the prosecution, the deceased used to quarrel with the accused very often and the case of the prosecution is that the accused killed his father on 12.5.1995. It would be pertinent to mention that on 13.5.1995 a telephonic information was received in Police Post, Sihunta, which was duly recorded in the daily diary (Ext.PK) to the effect that the dead body of the deceased was lying in his house in suspicious circumstances. This information was given by Sh. Gian Chand, President, Gram Panchayat, Garnota. Thereafter, the police officials visited the spot. The dead body was taken into possession and sent for post mortem examination. The Doctor opined that the death was caused due to the following factors: “(1) Cerebral congestion due to jugular vein. (2) Vagal shock, (3) Asphyxia due to (a) direct injury to chest (b) partial blocking of the air ways.” The police then investigated the matter and the statement of PW-1 Kanta Devi was recorded on 14.5.1995 under Section 154 Cr.PC. According to this statement, when Kanta Devi was going to throw cow dung and was crossing the house of the accused, she found that the deceased who was totally drunk was throwing out his household articles. He was also hurling abuses. She after witnessing the incident proceeded to dispose of the animal dung. While she was returning to her house and again was crossing the house of the deceased, she found the accused 3 giving blows to the deceased with the blunt side of a “Kulharu” (a small axe). According to her, Chhaila Devi, wife of the deceased and mother of the accused was trying to rescue the deceased. Then Kanta Devi was asked by Chhaila Devi to come to her home. PW-2 Punnu Ram reached there. They caught hold of the accused. Thereafter, the deceased was lifted by Chhaila Devi, Sudershana and Sudesh and was taken inside the house. PW-1 Kanta Devi returned home. Next morning, she learnt that Jagdish Chand had expired. Thereafter, the accused was arrested and allegedly made a disclosure statement which led to the recovery of the axe. After investigation, the accused was charged for having committed an offence punishable under Section 302 IPC. He has been acquitted by the learned trial Court. Hence, the present appeal. PW-1 Kanta Devi, on whose statement the entire case rests, has not supported the prosecution version. She totally resiled from her previous statement Ext.PA. Though she admitted her signatures on the same, according to her statement in Court, she had only seen Jagdish Chand deceased throwing his household goods outside the house in a drunken state. However, according to her when she was returning she saw that the deceased who was climbing the stairs leading from the ground floor to the upper storey of the house, fell down and thus received injuries. Kanta Devi then called PW-2 Punnu Ram 4 and they both lifted the deceased and took him inside. An important factor to be noticed is that the statement of this witness purported to be recorded under Section 154 Cr.PC Ext.PA, is not the first information of the case. Therefore, her statement under Section 154 Cr.PC could not have been recorded. According to the prosecution on 13.5.1995 at 8.15 a.m., they were informed that the dead body of the deceased was lying in the house in suspicious circumstances. This was the first information of the offence, if any, received by the police. Assuming that the police at this stage did not know that the deceased had been murdered, once it received the report of the post mortem, the police was well aware of the fact that the deceased had died an unnatural death and some offence had been committed. The statements of the witnesses recorded during investigation, must be recorded under Section 161 Cr.PC, wherein the witnesses are not supposed to append their signatures. Section 154 Cr.PC clearly provides that every information relating to the commission of a cognizable offence, if orally given should be reduced in writing by the Officer in charge of a Police Station, and if given in writing should be signed by the person giving it. The information given by Kanta Devi cannot be said to be the first information received by the police. Be that as it may be, the fact is that Kanta Devi has totally resiled from her previous statement. Though she had been cross-examined and confronted with her earlier statement, 5 she stuck to the version given by her in Court. PW-2 Punnu Ram also does not support the prosecution. According to him, PW-1 Kanta Devi had come and informed him that the deceased Jagdish Chand had fallen down from the stairs of his house. Thereafter, he went to the house of the deceased where Chhaila Devi, wife of the deceased was also present. She also informed him that the deceased had fallen down from the stairs. This witness was also declared hostile and cross-examined, but to no avail. Both the eye witness as well as the person who reached immediately thereafter have not supported the prosecution version. Another very important aspect of the matter is that Chhaila Devi who was admittedly present at the spot was not examined in the Court. In fact she was not even cited as a witness and there is no explanation as to why she was not associated with the investigation. Her evidence was most important in the case. Further, as per Ext.PL Sudershana and Sudesh had also come and carried the deceased inside his house. Neither Sudershana nor Sudesh were associated with the investigation nor they were examined in the Court. This shows that the investigation was not fair. In view of the above discussion, it is more apparent that the prosecution has miserably failed to prove that the accused had killed his father Jagdish Chand. The learned trial Court was justified in acquitting the accused. We find no merit in 6 the appeal which is accordingly dismissed. The bail bonds are discharged. ( Deepak Gupta ) Judge. ( Sanjay Karol ), Judge. March 31, 2010. (rana)