IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.:162/1998 Decided on: 25.3.2010 _____________________________________________ State of Himachal Pradesh. …Appellant. Versus Ajay Sharma alias Aju. …Respondent. _______________________________________________________ Coram: Hon’ble Mr. Justice Surjit Singh, Judge. Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 For the Appellant : Mr. Rajinder Dogra, Additional Advocate General. For the Respondent : Mr. Anup Chitkara, Advocate. _____________________________________________________ Surjit Singh, J (oral). This appeal by the State is directed against the judgment dated 1.8.1997 of the learned Sessions Court, whereby respondent Ajay Sharma, who was charged with and tried for offence, under section 302 of the Indian Penal Code, has been acquitted. Case of the prosecution may be summed up thus. Respondent Ajay Sharma and PW-7 Pooja were students of a School. It appears that the two became friends and when PW-5 Pooja’s brother Pankaj came to know about their friendship, he felt 1 Whether reporters of the local papers may be allowed to see the judgment? . 2 offended. He spoke to deceased Vishal alias Goldi, who was related to him and also to PW-3 Vinay Kumar, PW-4 Manoj Kumar and two more friends, namely, Mohan and Trilok. On 17.9.1996, PW-3 Vinay Kumar and PW-4 Manoj Kumar had gone to Palampur. There deceased Vishal also met them. They boarded a bus for a place known as Rajpura. There they alighted from the bus as deceased Vishal told PW-3 Vinay and PW- 4 Manoj that he wanted to collect his pants from a tailor. As per FIR Ex.PW-3/A, lodged by PW-3 Vinay Kumar at 3.10 P.M. on 17.9.1996, when he (deceased Vishal), PW-4 Manoj , PW-5 Pankaj and two other persons, named, Mohan and Trilok were going towards the shop of the tailor, respondent followed them and near the school, he took out a knife Ex.P-1 and stabbed the deceased with full force in the lower portion of his chest, as a result of which he staggered and fell on the spot. It was further reported that the deceased was rushed to the hospital at Palampur in a van and at the hospital when being taken to the operation theatre, he (the deceased) succumbed to the injury. The same day, PW-3 Vinay Kumar (the lodger of the FIR) made another statement to the police in which he changed the version. He stated that he, the deceased, PW-4 Manoj, PW-5 Pankaj and two other boys, namely, Mohan and Trilok went to the school and while they remained outside the school building, deceased Vishal and PW-5 Pankaj went inside the classroom and brought out the respondent and after sometime, deceased Vishal told him (PW 3 Vinay Kumar) and other boys except Pankaj, to 3 leave the school as he wanted to have a secret talk with the respondent and that when they came out of the boundary wall of the school, they saw the respondent stabbing the deceased in his chest with a knife, which he took out from the back pocket of his pants. Case was registered against the respondent. Inquest was conducted. Inquest report is Ex.PW-1/C. Dead body was sent to the hospital for post-mortem examination, vide writing Ex.PW-1/B. Postmortem was conducted by PW-1 Dr. S.K. Bhatia, who found a single stab wound 3 cm in length x 1 ½ cm wide and 10 inches deep, 6 inches below the left nipple just inside the mid axillary line. He gave the opinion that cause of death was shock due to rupture of left lung and left ventricle leading to excessive intra thoracic hemorrhage. He opined that death had taken place within two hours of the receipt of the injury. Postmortem was conducted at 5.10 P.M. on 17.9.1996 itself and it was opined that the time lag between the death and postmortem was four hours. Prosecution examined PW-3 Vinay Kumar, PW-4 Manoj Kumar and PW-5 Pankaj, as eye witnesses to prove the case. Respondent took the plea that deceased Vishal was a notorious muscle man of the area and that on the relevant date, PW-5 Pankaj, who was annoyed with him, on account of his relationship with Pankaj’s sister PW-7 Pooja brought him (deceased) to his classroom. He (deceased) caught hold him by his neck and dragged him outside of the classroom and outside the classroom, he asked his companions, i.e. PW-3 Vinay, PW-4 Manoj Kumar, 4 PW-5 Pankaj and two other boys, Mohan and Trilok to give him (respondent) a sound thrashing and that the deceased himself started proclaiming that he would kill him, upon which he (respondent) got alarmed and shouted for help. He further stated that on hearing his shouts several students gathered and one of those students caught hold of the deceased, who by then was brandishing a knife and in that process, the knife, with which the deceased wanted to strike him, hit the deceased himself in his chest and he sustained the fatal injury. We have heard the learned Additional Advocate General, as also the counsel representing the respondent and examined the record carefully. Story put forward by the prosecution during the trial and also which was developed during the course of investigation, is different from the earliest version, which was given to the Police, vide FIR Ex. PW-13/A at 3:10 P.M., or say within two hours of the occurrence. The subsequent version which was sought to be proved during the course of trial, has some element of truthfulness in it, as much as it is true as regards the scene of occurrence. Earliest version appears to be totally embellished. In the FIR, place of occuence is shown to be outside the School. The reason for giving the embellished version to the police is obvious. The deceased and the eye witnesses and two other persons, who were accompanying them, themselves were aggressors, as they wanted to teach a lesson to the respodnent for his having friendly relations with PW-7 Pooja, the sister of PW-5 Pankaj. On realizing that it was 5 difficult to stick to the earliest version given to the Police, probably on account of the fact that the scene of occurrence was inside the campus of the School and blood of the deceased was lying there, the version was immediately changed. Defence version was suggested to all the three eye witnesses. Vinay Kumar PW-3 denied it completely. Manoj Kumar PW-4 admitted the defence version to some extent, inasmuch as he admitted that the respondent had been brought out of the Classroom by Vishal (deceased) and that the respondent also had fallen, though he stated that he fell when he was trying to run away. Pankaj PW-5 admitted more than what Manoj Kumar did. The witness stated that after being brought out of the Class room, person of the respondent was searched and on search, a Katar (double edged sword) like weapon Ex. P-7, was recovered from the respondent and nothing else was recovered, meaning thereby, that the knife was not with the respondent. This admission by PW-5 Pankaj probablises the defence plea that the knife was with deceased Vishal and that when he took it out and brandished it, he (respondent) got scared and raised alarm. PW-5 Pankaj also admitted that respondent shouted loudly to attract students for help and that on hearing his shouts, many students gathered. He also admitted that PW-4 Manoj and Goldi (deceased) grappled with the respondent, though this fact was denied, both by Vinay PW-3 and Manoj PW-4. He also admitted that when Manoj and deceased grappled with the respondent, the latter fell down on the ground. He also admitted that respondent had developed friendship with his 6 sister Pooja (PW-7), which he not only did not like, but even opposed. He also admitted that he apprised deceased Vishal and other witnesses, including the alleged eye witnesses about the respondent’s developing friendship with his sister and other witnesses and that on the fateful day, all had gone to the School. Even Vinay and Manoj admitted that they had gone to the School, which fact is contrary to the earliest version, according to which, neither the deceased nor any of the witnesses went to the School but the incident took place outside the school building when the deceased and eye witnesses were going to tailor’s shop. In view of what has been noticed hereinabove, we do not find any fault with the view taken by the learned trial court that the defence plea is probablised from prosecution’s own evidence. Consequently, the appeal is dismissed. (Surjit Singh), J [ (Rajiv Sharma), J 25.3.2010 *awasthi*