IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.A. No.18/2001 Reserved on.26.12.2007 Decided on. 7.1.2008 Udham Singh and others. …Appellants. Versus State of Himachal Pradesh. …Respondent Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. No. For the appellants : Mr. Virendar Rathore, Advocate. For the respondent: Mr. V.K. Verma, Additional Advocate General. Rajiv Sharma, J. This appeal has been directed against the judgment of conviction and sentence dated 4.1.2001 passed by learned Additional Sessions Judge (1), Kangra at Dharamshala in Sessions case No. 21-N/1998 whereby the appellants have been convicted under sections 307, 452 and 34 of the Indian Penal Code. They have been sentenced to undergo rigorous imprisonment for a period of 2 years and to pay a fine of Rs.1000/- and in default of payment of fine each of them have further been directed to undergo rigorous imprisonment for 3 months. The appellants have further been sentenced to undergo rigorous imprisonment for a period of 3 months and to pay a fine of Rs. 500/- under section 323 of the Indian Penal Code and in default of payment of fine each of them have been directed to undergo rigorous imprisonment for a period of one month. They have been further sentenced to undergo rigorous 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. 2 imprisonment for a period of 3 months under section 342 of the Indian Penal Code and to pay a fine of Rs. 500/- and in default of payment of fine each of them have been directed to undergo rigorous imprisonment for a period of one month. All the sentences were to run concurrently. The prosecution case in nutshell is that on 26.9.1996 at about 12.30 P.M. Smt. Brahmi Devi was present in her house along with her sons Jeet Singh, Amar Singh, daughter in law Rita Devi and daughter Krishna Devi, then all of a sudden the appellants came there and entered into her house. The accused were armed with dandas and accused Joginder Singh was having a Takuwa/Khukhari in his hand. They started beating her sons, namely, Amar Singh and Jeet Singh. On seeing this, she immediately left for the house of Chowkidar in order to report about the occurrence but Chowkidar Rasila Ram was not found in his house as a result of which she came back. When PW-4 Brahmi Devi reached back side of her house all the accused persons confronted her there and started beating her with dandas as a result of which Brahmi Devi suffered injuries on various parts of her body. Thereafter the appellants-accused fled away from the spot. On the basis of the statement of PW-4 recorded under section 154 Cr.P.C., FIR (Ex.PW-10/A) was recorded. The challan under sections 307, 452 read with section 34 of the Indian Penal Code was presented before the learned Additional Chief Judicial Magistrate, Nurpur, who found the offence under section 307 of the Indian Penal Code to be exclusively triable by the court of Sessions and committed the case to the court of learned Sessions Judge, Kangra at Dharamshala. The learned Sessions Judge, Kangra assigned the case to the Additional Sessions Judge (1), Kangra at Dharamshala on 18.6.1998. The prosecution had examined as many as 12 witnesses to prove its case against the appellants. The appellants were examined under section 313 3 of the Code of Criminal Procedure. The Additional Sessions Judge (1), Kangra at Dharamshala sentenced and convicted the appellants as stated in opening para vide judgment dated 4.1.2001. Mr. Virender Rathore, Advocate appearing on behalf of the appellants had strenuously argued that the trial court has misinterpreted and misconstrued the evidence. The prosecution has miserably failed to bring home the charges against the appellants. There are unexplained gaps in the prosecution story, which is highly improbable. The learned Additional Advocate General appearing on behalf of the State had supported the impugned judgment and had submitted that the prosecution has proved the case against the appellants-accused. I have heard the learned counsel for the parties and have gone through the record of the case. PW-3 Sh Jeet Singh has deposed that on 26.9.1996 at about 12.30 P.M., his mother Brahmi Devi, brother Amar Singh, sister Krishna Devi and Bhabhi Rita Devi were present in his house. The appellants came armed with one Takuwa and dandas in their hands and started beating him with dandas inside the room. He has specifically stated that his brother Amar Singh was also present in the room. His mother went to inform the Chowkidar about the incident. According to him the accused had bolted the door of his room from out side and he along with his brother Amar Singh were not in a position to go out of the room. According to him, his sister Krishana and Bhabhi Rita were kept in other room by bolting the door from out side. The room according to him was opened by Pala Halwai of Raja-Ka-Talab. In his cross-examination he had admitted that there are 5-7 houses surrounding his house. He has further deposed in his cross-examination that he along with other members of the family raised hue and cry but none from those houses 4 came to their rescue. He has admitted further in his cross-examination that his sister and Bhabhi did not come to his rescue when the appellants were giving beatings to him. PW-4 is Smt. Brahmi Devi. She has stated that when she was present in the house with her son Jeet Singh, Amar Singh and daughter- in-law, Rita Devi and her daughter Krishana Kumari, the appellants came armed with dandas and Khukhari and started giving beating to her sons Amar Singh and Jeet Sing inside the room. She has further stated that on seeing this, she left for the house of Chowkidar for reporting the matter to Rasilo Ram, Chowkidar. Since the Chowkidar was not present in his house, she came back and was given beatings by the appellants. She suffered various injuries on her arms, hands, shoulders, back, leg and foot. She has admitted in her cross-examination that there are about 10- 12 houses adjacent to her house. She further has admitted in her cross- examination that she did not go in the room to save her sons and she went to report the matter to the Chowkidar. PW-5 is Sh. Krishan Pal. He has deposed that Shri Jeet Singh and Amar Singh were working in his shop as labourers 2 ½ years back. When the brothers did not come to his shop, he came to their house to inquire about their absence. He further stated that he found the room of Jeet Singh and Amar Singh bolted from out side and the rooms of Rita and Krishana Kumari was also bolted from out side. He opened the doors. PW-6 is Rita Devi daughter in law of Brahmi Devi (PW-4). She has stated that the appellants gave beatings to her Devar Jeet Singh in her presence and her mother-in-law left for reporting the matter to the Chowkidar. She and her Nananad were kept in one room and her Devar was kept in another room and both the rooms were bolted from out side. She has 5 categorically admitted in her cross-examination that she did not try to save Amar Singh and Jeet Singh. PW-7 is Sh. I.S. Bhardwaj, District Revenue Officer, who had recorded the statement of Smt. Brahmi Devi, who was identified by police officials, who accompanied her. PW-8 is Sh. Desh Raj, who is Chowkidar of Dharpur. He was associated with Rasilo Ram in the investigation. He has stated that the house of Brahmi Devi is near to his house. In cross- examination, he has stated that though his house is about 50 meters away from the house of Brahmi Devi, but he did not hear about the quarrel or seen the occurrence. PW-9 is Mala Singh. It can be safely gathered from his statement that he is interested witness since there was litigation going on between him and the family of the appellants. The other material witness is PW-2 Dr. Sanjay Kumar, who had issued Ex.PW-2/A. He has admitted in his cross-examination that he has mentioned in the MLC Ex.PW-2/A that the injuries were sufficient to cause the death. He himself has stated that this opinion was given by him on the request of the police. The prosecution had not cited Amar Singh and Krishana Devi as witnesses. It is in this background that the evidence of the material witnesses is to be examined by the Court. PW-3 has admitted in his cross-examination that 5-7 houses are situated near his house. It is difficult to believe that when they had raised hue and cry, the people from the surrounding houses would not come out to save them. He has also admitted in his cross-examination that his sister and Bhabhi did not come to his rescue when he was given beatings by the appellants. It is highly improbable that his sister and Bhabhi will not come to his rescue when he was attacked by the appellants. According to him, his brother Amar Singh was given beatings by the appellants. Amar Singh was not examined medically nor cited as a witness. Amar Singh should have been examined 6 as a witness as according to Jeet Singh he was present in the room when he was given beatings by the appellants. The conduct of PW-4 Brahmi Devi is also highly improbable. She in normal circumstances should have rescued her sons when they were attacked by the appellants. She instead of raising hue and cry more particularly when according to her own admission 10-12 houses are situate adjacent to her house, went to report the matter to the Chowkidar. In normal circumstances she was bound to protect her sons when they were attacked by the appellants. The presence of Krishan Pal PW-5 on the spot is also suspicious. He according to his own version is working as a Halwai. He was supposed to be at his shop instead of being on the spot under the pretext that Amar Singh and Jeet Singh were absent. It appears that Krishan Pal has been cited as a witness only to strength the story of prosecution that the accused had bolted the rooms while fleeing from the spot. Krishan Pal has admitted that neither Brahmi Devi nor Jeet Singh and other members of the family have disclosed the names of the persons, who had given beatings to them. The first normal response of Brahmi Devi and others would have been to disclose the names of the persons more particularly when Krishan Pal had come to inquire about their well being and had opened the doors. Now, the Court has to scrutinize the statement of PW-6 Smt. Rita Devi. She has stated that the appellants were giving beatings to her Devar, Jeet Singh in her presence and her mother-in-law left to inform the Chowkidar about the incident. She has admitted in her cross-examination that she along with her Nananad did not try to save Amar Singh and Jeet Singh. This is highly improbable, normally when the family member is attacked; the other family members would try to save him. The statement of PW-7 Sh. I. S. Bhardwaj is of no consequence since Smt. Brahmi Devi 7 did not die and her statement recorded by Sh. I. S. Bhardwaj is of no consequence. PW-2 Dr. Sanjay Kumar Mahajan has admitted in his cross-examination that he has given the opinion in his statement on the request of the police. This admission on the part of PW-2 casts serious doubt about his statement. There were also two eye witnesses to the incident i.e. Amar Singh and his sister Krishana Devi. They have not been examined by the prosecution and adverse inference has to be drawn against the prosecution for not examining them. The prosecution has not examined any independent witness in support of the case. The statement of PW-9 Mala Singh is to be ignored for the simple reason that he is interested witness due to the pendency of the litigation between him and the family of the appellants. The prosecution has thus failed to prove the case against the appellant beyond reasonable doubt. The learned court below has not properly appreciated the evidence on record and has erred in convicting and sentencing the appellant. The impugned judgment thus is liable to be set aside. In view of the discussions made hereinabove, the appeal is allowed. The appellants-accused are acquitted of the charges levelled against them. The fine amount, if any, deposited by the appellants be refunded to them. The bail bonds furnished by the accused are discharged. ( Rajiv Sharma), Judge January 7, 2008. *Awasthi*