IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 126 of 1999 Date of decision: 25.5.2010 State of H.P. Appellant Versus Jagat Ram Accused/Respondent Coram: The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting? No For the Appellant: Mr. Rajesh Mandhotra, Deputy A.G. For the Respondent: Mr. Vijay Bhatia, Advocate. _____________________________________________________ Deepak Gupta, J(Oral) 1. This appeal by the State is directed against the judgment dated 30th December, 1998, delivered by learned Sessions Judge, Bilaspur in Sessions Trial No. 9 of 1998, whereby he acquitted the accused of having committed an offence punishable under Section 302 of Indian Penal Code. 2. Briefly stated, the facts of the case are that, on 4.12.1997 PW-1 Prakash Chand lodged a complaint with the Police Station Talai to the effect that Balbir Singh resident of Kandali called 2 informant Prakash Chand to his house and informed him that his cousin Dev Raj has been beaten by the accused Jagat Ram. Thereafter, Prakash Chand alongwith his brother Dhani Ram went to the house of Raj Kumari and saw that Dev Raj was lying in an injured condition. On enquiry, Raj Kumari informed Prakash Chand that Dev Raj had come to her house at 8.30 a.m. in the morning and was drinking liquor since then. He had been drinking liquor neat without adding any water. At about 1.30 p.m. Jagat Ram accused hit the injured with a stone. Then Jagdish PW-5, Pradhan of the village and Dhani Ram, Up- Pradhan also came to the spot. Injured was brought to the hospital at Talai. 3. On the basis of this information, F.I.R. Ext.PW-1/A was registered at the Police Station. Unfortunately, Dev Raj expired in PHC Talai soon thereafter. Therefore, the case was converted into Section 302 IPC. Investigation was conducted by the Investigating Officer. After the completion of investigation, challan was filed in the court. The accused has been acquitted by the learned trial court. Hence this appeal by the State. 3 4. The only eye witness to the occurrence is PW-3 Raj Kumari. Her version is that Jagat Ram is her husband’s younger brother. She did not know Dev Raj till the day in question. Her husband works as a fisherman in Bilaspur. PW-1 Prakash Chand had brought Dev Raj to her house on the previous day. On the next day Dev Raj came to her house at 8.00 a.m. and started drinking liquor without adding any water. Since her husband was not at home and she apprehended danger to her life she called the accused Jagat Ram. A quarrel ensued between Dev Raj and Jagat Ram. Since Dev Raj abused Jagat Ram, Raj Kumari ran away from the spot to inform the villagers. On the way she met Prakash Chand PW-1 and Dhani Ram, brother of the deceased and informed them about the incident. She returned at about 4.30 p.m. and found Dev Raj was lying injured in the courtyard. Her husband had also arrived, but Jagat Ram accused had gone to his house. A large number of people gathered there. This witness was declared hostile as she resiled from her earlier statement made under Section 161 Cr.P.C. She was cross-examined by the Public 4 Prosecutor on behalf of the State. She denied that she had seen Jagat Ram accused hitting Dev Raj with the stone. She denied that she had made a statement to this effect to the police. She also denied that she had taken money and watch from the pocket of Dev Raj. Her explanation to this effect was that money and watch were lying in the courtyard and she kept them for safe custody. During cross-examination by the accused, she came up with different version According to this version Dev Raj was consuming liquor and tried to take her inside with intent to commit sexual assault on her. Therefore, she called Jagat Ram to help her. 5. PW-5 Shri Jagdish Chand is the Pradhan of the village. According to him on 4.12.1997, after the meeting of the Panchayat was over, he was informed by Jagdev, shopkeeper that one person is lying unconscious in the house of Mansha Ram. He, therefore, deputed Sukh Ram to visit the spot. Sukh Ram went to the spot and came back and reported that one boy is lying in the courtyard of Mansha Ram in an unconscious state. Thereafter, PW-5 alongwith the Vice President of the 5 Panchayat and 5-6 other persons went to the spot. He learnt that earlier the boy was outside the house but had been taken inside at that time. He asked the people to again bring boy outside. They tried to give him water but the injured did not drink any water. There was no injury on the body of the injured person. He was only unconscious. Raj Kumari handed over Rs.3900/- and watch belonging to the boy to Prakash Chand and Dhani Ram. On enquiry Raj Kumari repeated the story which she had told earlier. During cross-examination by the accused, this witness also stated that Raj Kumari had told them that Dev Raj was teasing her and trying to outrage her modesty under the influence of liquor. However, this fact was not mentioned in the statement of this witness recorded under Section 161 Cr.P.C. 6. PW-1 Prakash Chand has made a statement similar to what has been recorded in the F.I.R. He was not an eye witness and came to the spot later on. In examination-in-chief, he stated that he saw the entire body of Dev Raj, but there was no injury on his person. In cross- 6 examination he stated that Dev Raj injured was lying in an unconscious position and was unable to speak. According to him Dev Raj was smelling of alcohol. He also admitted that Raj Kumari told him that Dev Raj entered her house with a view to outrage her modesty. 7. PW-2 Dhani Ram, Vice President of the Panchayat went to the house of Mansha Ram alongwith the Pradhan. He also stated that that there were no injuries on the person of Dev Raj. According to him Raj Kumari told him that Dev Raj had caught hold of her arm and when she raised an alarm, accused Jagat Ram came there and rescued her from the clutches of the deceased. Jagat Ram hit Dev Ram with a stone on his testicles and thereafter Dev Raj was taken to the hospital. This version is different to the versions of all the other witnesses who reached the spot. PW- 6 Kanta Devi only stated that when she returned from the fields number of persons had gathered in the house of Raj Kumari but she did not visit the house since according to her Raj Kumari did not enjoy a good reputation. The brother of 7 deceased Dhani Ram, who was one of the first persons to reach the spot was not examined. 8. Dr. N.K. Sankhyan PW-10 who alongwith Dr. D.R. Sehgal conducted the post mortem on the body of the deceased found as many as 14 injuries on the body. Their opinion was that deceased died due to Hypovolumic shock as a result of injury to the lower abdomen He stated that if the victim was hit minimum for three times with stone Ext.P-1, the injuries on the pelvic region could be caused. The Chemical Examiner found alcohol to the extent of 188.0 mg in the blood of the deceased, which is a very high level of alcohol. 9. PW-11 Dr. Rajesh Mittal examined the deceased at PHC, Talai. In cross-examination he stated that he did not see any visible injury on the person of the deceased except that blood was oozing from the penis of the deceased. 10. There is no manner of doubt that the deceased died due to injuries caused to him. However, the prosecution has miserably failed to prove that it was Jagat Ram who caused injuries on the person of the deceased. The only eye 8 witness Raj Kumari turned hostile and did not support the prosecution version. The other witnesses who reached the spot soon thereafter have given different versions about what Raj Kumari allegedly told them on the spot. None of these persons found any injury marks on the person of the deceased. As stated above the doctors found 14 injuries on the body of the deceased, some of which were on the forehead, nose abdomen etc. In fact, the doctor did not find any injury on the private part of the deceased. There is no explanation as to how these witnesses did not notice the injuries which were visible. None of the persons who reached the spot immediately called the doctor. PW-11 found no visible injury on the person of the deceased. There is no explanation as to how ante mortem injuries appeared after the examination of the injured in the hospital and before his post mortem. There are various inconsistencies and contradictions in the statements of the prosecution witnesses who reached the spot. The medical evidence does not support the 9 prosecution case. The only eye witness has not supported the prosecution. 11. Therefore, the learned trial court was fully justified in acquitting the accused. We find no error in the judgment of the learned trial court. The appeal is accordingly dismissed. The bail bonds furnished by the accused are discharged. (Deepak Gupta), J (Rajiv Sharma), J May 25, 2010 (VT)