IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.68 of 1995 Date of decision: 5.3.2009 State of H.P. ... Appellant Versus Purshotam Ram and others … 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. R.M. Bisht, Deputy Advocate General. For the respondents: Mr.K.D.Sood, Advocate. ____________________________________________________________ Deepak Gupta, J (Oral). This appeal is directed against the judgment dated 2.5.1994 passed by the learned Additional Sessions Judge, Mandi, H.P. in Sessions Trial No.11 of 1993, whereby he has acquitted the accused of having committed offences punishable under Sections 302, and 201 read with Section 34 IPC. Briefly stated, the prosecution story is that deceased Balu Ram had left his village and gone to the house of his 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 niece in village Ukhaldhar on 16.9.1992. On 18.9.1992 his nephew Devi Lal, PW-4 came to Ukhladhar and inquired about Balu Ram from Sh.Gulab Singh, PW-2, brother of the deceased. Since the deceased had not returned for two days they got suspicious and went to the other village. They were informed by the children of one Dolu Ram that a dead body was lying in Chulugahan Nullah in village Palsehar. When they went to the Nullah they found that the body was that of the deceased Balu Ram. Thereafter, Gulab Singh went to Police Station, Aut and informed the police and Rapat Roznamcha Ext. PW-11/A was recorded on 18.9.1992. The police officials came to the spot along with the photographer and investigation was carried out. The body of the deceased was sent to the District Hospital, Mandi for post mortem. A number of injuries were found on the body of the deceased and it was opined that the deceased had died due to subarachnoid heamatoma caused by head injury No.2 i.e. 3 cm laceration on vertex of head. On 18th September, 1992 itself one Chhapu Ram (PW-8) allegedly made a statement to the police which has been termed as the statement under Section 154 Cr.P.C. In this statement Chhapu Ram stated that on 3 16.9.1992 he had taken his goats for grazing near Chulugahan Nullah. Some other persons were also present there with their goats. At about 4 – 4.30 p.m. in the evening he saw the deceased along with his cattle coming from the upper side. Then a young girl named Meena stated that 2 to 3 persons are throwing stones on some other persons. Then the girls went ahead and saw that the accused Rup Chand , Purshotam and the son of Rup Chand were throwing stones on Balu Ram. The girls ran away. Then, Chhapu Ram asked the accused persons what is happening. Then Rup Chand gave 3-4 blows of the ‘chappal’ to Balu Ram. Purshotam beat his chest and proclaimed that who are you to ask us any question. Chhapu Ram further sates that he saw that there were injuries on the face of Balu Ram. Thereafter, Balu Ram ran away and the accused ran after him and they were throwing stones on him. The witness came home and according to him he informed his son Budhi Singh about the entire incident. On 18th September, 1992 he saw the dead body of Balu Ram in the Nullah and he suspected that the accused may have killed him. The entire edifice of the prosecution case centers around the statement of Chhapu Ram. In Court Chhapu 4 ram has given an entirely different version. He states that the accused persons came to the place where he was grazing his cattle and then he begged pardon from the accused. Thereafter, Balu reached the spot and was given 3-4 ‘chappal’ blows by Rup Chand. Balu had received some injury on his chest. Thereafter, Balu ran away from the spot. In Court this witness does not state a single word about the accused throwing stones on the deceased. He admits that Balu was his relative. If that was so, Chhapu Ram would not have remained silent for two days and would have told the entire village that Balu was beaten up by the accused. In cross examination he admits that no quarrel between the deceased Balu and accused took place in his presence. In examination-in- chief he stated that he informed his son Budhi Singh about the incident. In cross examination he states that Budhi Singh is in fact the son of Shankru and he is his maternal grand son. Then the witness further states that the mother of Budhi Singh is his daughter in relationship. He then states that he never met Budhi Singh after the incident. Budhi Singh was examined as PW-9. He states that he saw the accused persons assaulting some other persons near the mulberry farm but no one witnessed the 5 incident. According to him he did not tell anybody about the incident till the ‘Kriya” of Balu. His statement was recorded by the police four months after the incident. Chhapu Ram states that he informed Budhi Singh when he came home whereas Budhi Singh states that he alone witnessed the incident. Both these statements are contradictory to each other. This is the only evidence worth the name against the accused. This evidence does not inspire any confidence. The story of the accused persons being last seen with the deceased is a creation of the prosecution. In case Chhapu Ram and Budhi Singh witnessed the incident they would have not kept silent for such a long time. The statements of both these witnesses are full of contradictions. The injury which caused the death could have also been sustained in a fall. The other circumstance relied upon is in respect of the recoveries allegedly made at the instance of the accused persons. The witness to the recovery Kanshi Ram, PW-1, has admitted in cross examination that when the Investigating Officer reached the spot this witness along with other villagers had already inspected the entire area near the place of occurrence. Thereafter, the Investigating Officer spent 1½ hours in 6 order to ascertain the place from where the body had been dragged to the nullah. No blood stained stones and articles were found near the place where the body of the deceased Balu Ram was found on September 18, 1992 despite inspection. How then were these items recovered from the same spot after a few days? This belies the prosecution story totally. In view of the evidence on record the learned trial Court rightly acquitted the accused. This judgment calls for no interference in appeal. In view of the above discussion, we find no merit in the appeal which is accordingly dismissed. Bail bonds, if any, furnished by the accused are ordered to be discharged. ( Deepak Gupta ), J. March 5, 2009 ( V.K.Ahuja ), J. PV