1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 543 of 1996 Decided on: May 25, 2010. State of H.P. ..Appellant. Versus Balak Ram & another ..Respondents Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? For the Appellant : Mr. Rajinder Dogra, Additional AG with Mr. Anil Jaswal, Dy. AG For the respondents : Mr. Rupinder Singh, Advocate. Justice R.B. Misra,J (Oral). The present Criminal Appeal has been preferred under Section 378 (3) of the Code of Criminal Procedure and after the leave to appeal has been granted in reference to the judgment dated 22.1.1996 passed by learned Sessions Judge, Sirmaur, District at Nahan in Sessions Trial No. 47-N/7 of 1994, thereby acquitting the accused/respondents for the offence under section 304 of IPC. 2. In order to adjudicate the present appeal, it is necessary to give the factual background of the case. The prosecution story which emerges from the evidence, led before the Court is that one Tholu Ram son of Bholu Ram, aged 34 years had made a complaint on 25.11.1992 that on 22.11.1992 Balak Ram and Vidya Devi gave him beating with fist and leg blows in their house in village Chandni and thus he was feeling 2 pain in his neck, waist and left leg. In that reference, rapat was recorded at Police Station, Paonta Sahib. The injured was referred to Civil Hospital, Poanta Sahib. However, on 26.11.1992, Tholu Ram had died at 6.20 AM. Postmortem was conducted and on investigation, a case under section 304 IPC was registered. During investigation, it was found that Tholu Ram owed Rs. 20/- to Balak Ram accused and in lieu of that Banta (matalic pitcher) was taken by Balak Ram, who came to the house of the deceased on 22.11.1992 at 2.30 PM and took away his Banta but the deceased followed him to his house and demanded the Banta. The accused did not return his Banta, but instead alongwith his sister co-accused, Vidya Devi gave him beating with fist and leg blows. However, on 24.11.1992 at 9.00 AM, brother of Tholu Ram, namely, Swarnu Ram (PW-1) came to know from his nephew Rangi Lal that Tholu Ram deceased was lying in his room and crying. PW-1 then went to the deceased and came to know about the occurrence. On 25.11.1992 he lodged the report at Police Station, Paonta Sahib and Tholu Ram was brought to the Hospital and was subsequently referred to District Hospital, Nahan, where he died of the injuries. 3. After investigation, the accused were charged for the offence punishable under section 304 IPC. Both the accused denied the charge and claimed trial. Prosecution has examined as well as 18 witnesses, whereas the accused in their respective statements under section 313 Cr.PC denied the prosecution evidence and showed their ignorance. 4. We have gone through the contents of the prosecution witnesses and medical report. We noticed that PW-1 Sawaru Ram, real 3 brother of Tholu Ram, deceased has deposed that Jiwanu, a brother of Sawaru Ram was sent by him to enquire about Tholu Ram as to what happened to him. Tholu Ram said nothing and simply asked to take him out in sun. Then they lifted his cot and he was brought in the open. Tholu Ram, deceased had reported that he was having pain in his neck, arms and legs. He did not as to what was the cause of pain. When PW-1 and Jiwanu were intended to take him to the hospital, Tholu Ram told that he had no money. When they offered to meet the expenses on treatment, Tholu Ram agreed for being taken to the hospital. When he was taken to the hospital, Tholu Ram told that Balak Ram accused and his sister Vidya Devi accused had beaten him by fist and kick. However, he could not told as to when and why he was beaten. He had simply stated that Balak Ram had borrowed his Banta for fetching water and when he went to fetch the Banta back, the accused demanded the debt of Rs. 20/- which he owed to him and when he told that he had no money to pay back the debt, accused Balak Ram and Vidya Devi gave beating to him. Before Tholu Ram was to be taken to the hospital, the two accused approached PW-1 to get the matter settled amicably and offered to meet the expenses of his treatment. Both the accused called the Pradhan of the Panchayat also. Pradhan did not approve of the settlement of the matter because of the condition of Tholu Ram was bad, rather the Pradhan asked PW-1 to take Tholu Ram to the hospital because his condition was critical. Accused Balak Ram and Vidya Devi had brought Gur and Ghee and offered the same to Tholu Ram. Tholu Ram was first was taken to the hospital at Poanta Sahib, where his statement was recorded and on the advise of doctor, Tholu Ram was brought to District Hospital, 4 Nahan. In cross examination, PW-1 has stated that when Balak Ram and Vidya Devi approached Tholu Ram with Ghee and Gur, he refused to accept the same and cursed them and said that he was going to die of the injuries caused to him. In cross examination, PW-1 also stated that on 25.11.1992 two accused revisited Tholu Ram in the company of the Pradhan of the Panchayat, namely, Dalip Singh and offered him to get treatment at their own expenses. In cross examination PW-1 has further stated that he did not take his brother to the hospital on the same day because he thought he might be having pain because of extreme cold caused by the season and the rainy. In his cross examination, PW-1 has stated that there are several houses near the house of accused Balak Ram and names of the occupants of those houses are Jalam Singh, Dharam Singh, Nain Singh, Ram Sarup and Janki Devi. In the cross examination, PW-1 has categorically stated that he himself and Jiwanu did not observe any apparent external injury on the person of Tholu Ram. It was further categorically stated in the cross examination by PW-1 that the doctor at Poanta Sahib said that probably Tholu Ram had caught cold. 5. PW-2 Jiwan Singh stated that on 23.11.1992, his brother Sawaru Ram came to him and told that something had wrong with Tholu Ram and that he was lying in his room. PW-2 went to Tholu Ram’s house and on inquiry, he told that he had been given beating by the two accused on 22.11.1992 when he went to get his Banta back. He told that his Banta had been borrowed from him by Balak Ram for collecting water and when he went to get the same back, he refused to return the same that until his loan of Rs. 20/- was repaid back by him, 5 Banta would not be given back to him. PW-2 further told that accused Balak Ram runs grocery shop. Tholu Ram told that he owed Rs. 20/- to Balak Ram accused because he had purchased grocery items from Balak Ram’s shop on credit. According to PW-2 he was told by Tholu Ram that he was having pain in his neck, an arm and a leg. PW-2 further stated that Sawaru Ram was also there when Tholu Ram made the aforesaid disclosure. PW-2 further stated that Tholu Ram was asked to be taken to the hospital, but he said that he had no money with him. Next day Tholu Ram told PW-2 that Balak Ram accused had brought Gur and Ghee for him and wanted to settle the matter amicably , but he did not agree. The PW-2 went to Pradhan of the Panchayat, Dalip Singh, but he was not at home. PW-2, revisited him on the next following day and pradhan came to Tholu Ram’s house along with Lamberdar. On seeing Tholu Ram’s condition he asked to him to the hospital. The two accused also came to Tholu Ram’s house when Pradhan and Lamberdar were there. They offered to get Tholu Ram treated at their own expenses. They also said that they were prepared to undergo punishment. PW-2 has also stated that he used to do the work of construction of cow shed of the accused and remains buzy from 8 00 AM to 5 00 PM. In the cross examination, PW-2 has also stated that Tholu Ram was never given beating by the two accused in his presence. Further stated that he was constructing the cow shed close to the house of the accused. It appears that testimony of PW-1 and PW-1 are well acquainted with Tholu Ram. It appears from the testimony of PW-1 that when PW-1 went along with Jiwanu, nothing was revealed by Tholu Ram and on persuasion while he was being taken to the hospital, he divulged that he was beaten by 6 accused Balak Ram and Vidya Devi and before he was being taken to hospital, two accused persons approached him for amicable settlement and thereafter the two accused called Pradhan of panchayat. However, nothing has bee revealed from the testimony of PW-1 that Lamberdar was also accompanying the Pradhan. In the cross examination of PW-1 it is stated that it was Pradhan, namely, Dalip Singh who suggested that Tholu Ram be taken to the hospital, whereas from the testimony of PW-2, it was divulged that Tholu Ram was beaten by both the accused. It was also stated by PW-2 that Tholu Ram told that Balak Ram accused had brought Gur and Ghee for him on 24.11.1992 and wanted to settle the matter amicably and when PW-2 went to the house of Pradhan of the panchayat he was not at home and on revisit, pradhan came to the house of Tholu Ram along with Lamberdar. Such contradictory and different version indicated in the testimony of PW-1 who was said to be present along with PW-2 on seeing the condition of of Tholu Ram, Pradhan suggested to take him to the hospital in the present of Lamberdar and it was Pradhan who had offered to bear the expenses of treatment of Tholu Ram. There is apparent contradictions so as the disclosure of beating to Tholu Ram is concerned. The arrival of Pradhan is also suspicious as PW-2 in his testimony has stated that Pradhan was accompanying with Lamberdar, whereas PW-1 did not disclose this fact. PW-2 has stated that Tholu Ram had told that both the accused had come earlier separately and offered Gur and Ghee and next day also the accused were said to be present in the presence of Pradhan offering Gur and Gee. Such statements are also contradictory. PW-2 in his cross 7 examination has specifically indicated that Tholu Ram was never given any beatings by the two accused. 6. PW-3 is the statement of Dr. R.K. Sood, who conducted postmortem examination on the body of Tholu Ram. The deceased had been diagnosed by the doctors of Paonta Sahib as a patient of meningitis. PW-3 further stated that on the external examination of the dead body, it was found that the dead body was of a man of moderate built. The body had not decomposed. Rigor mortis were present. The deceased was wearing a yellowish black coat and shirt and pyjama of brown colour. There was a small wound on right temporal region 4” above the upper portion of pinna. On cutting of hear a swelling around the wound 1” x 1” of skin colour was noticed. On dissection sub cutaneous hemorrhage was spotted. There was fracture of right temporal bone 2” long 1” behind the temporo parietal suture. Right nostril was blackish in colour. There was blood clot in the said nostril. Swelling over neck all around three contusions on right side of middle of neck of blackish colour were noticed, in an area of 4” x 4”. No bleeding in sub cutaneous tissues was notice. There was a bony swelling of left leg due to some old fracture. On opening the abdomen, walls, peritoneum, large and small intestines, spleen, kidneys and organs of generations were found to be normal. Mouth was also normal. Pharynx contained some dark reddish secretion. Osophagus was normal. Stomach was normal. Small intestines contained some semi solid matter. Bladder contained about 200 cc of straw coloured fluid. On opening the skull fracture of right temporal bone as already noticed was found. There was also a fracture of anterior cranial fossa in its anterior portion. There was a sub 8 dural haematoma in right temporal to be 2” x 2 “ blackish in colour. Middle meninareal artery was ruptured. On opening the thorax everything was found normal. Larynx and trachea contained frothy blood stained secretions. Heart contained dark fluid blood on left side, but right side was empty. Large vessels contained dark fluid blood. There was no injury to muscles, bones and joints except the deformity of left leg due to some old fracture as already noticed. 7. In the opinion of PW-3, casue of death was head injury leading to hemiparesis and ashhyxia. The opinion was given provisionally. Final opinion was to be given on receipt of the Chemical Examiner’s report to whom viscera was sent was sent. The provisional opinion was later on confirmed on the receipt of the Chemical Examiners. The fracture of the head could not have been caused by fist blows or kick blows. It could have been possible by a kick blow provided the man kicking wore a shoe having metallic toe. This fracture could have been possible with a fist blow also provided the man giving the fist blow was wearing a heavy metallic ring or wore some knuckle. The contusions, which were observed on the neck of the deceased could have been caused by pressing the neck. The injury observed on the nostril could have been the result of the fist blow. 8. In cross examination, PW-3 has stated that the injuries may be caused of falls while under the influence of liquor except the injury which was noticed by PW-3 . From the testimony of PW-3, who has noticed multiple injuries on the body of Tholu Ram, were never noted by PW-1 and PW-2 in the presence of Pradhan. PW-5, Dalip Singh in his testimony has deposited that on 24.11.1992 around 7 or 8 in the 9 morning Jiwan Singh came to him at his house and told him that his brother Tolu Ram had been beaten up by Balak Ram and his sister Vidya Devi and when PW-5 went to Tholu Ram ‘s house, he was lying on a cot. On inquiry, he told that Balak Ram and Vidya Devi had given him beatings and accused Balak Ram had taken his Banta because he owed some money from him and that when he went to get his Banta back, he was beaten. It was further stated by PW-5 that he told Jiwan Singh, brother of Tholu Ram that the condition of Tholu Ram was not good and he should be taken to the hospital. When his brother tried to lift Tholu Ram , it was felt that his condition was critical because his neck was sent on one side and his brothers were finding it difficult for lift him. PW-5 when went back to his house, accused Balak Ram and his brother and 3-4 other persons came to his house , again said that they joined him on the way when returning from Tholu Ram’s house. Vidya Devi and Balak Ram’s brother liak Ram asked him to get the matter settled amicably. Balak Ram and Vidya DEvi accused had told PW-5 they happens to have a quarrel with Tholu Ram and gave him beating and that the matter be got settled. 9. From the testimony of PW-5, different story has come. As per the testimony of PW-1 and P-2, arrival of Pradhan Dalip Singh, PW-5 was in different manner and PW-5 has stated that when he returned back from the place of Tholu Ram, Balak Ram and his brother and 3-4 persons came to his house and was requested by Vidya Devi, Balak Ram and other persons to get the matter amicably settled. PW-2 is said to have observed the presence of PW-5 with Lamberdar in the presence of accused and both the accused were said to have offered Gur 10 and Ghee , whereas nothing has come from the testimony of PW-5. PW- 5 is said to have suggested Jiwan Singh to take Tholu Ram to the hospital as his condition was critical whereas PW-2 has deposed in his testimony that it was Tholu Ram who was suggested by PW-5 that he should be taken to the hospital. Apparent contradictions are being noticed in the testimony of PW-1, PW-2 and PW-5. PW-5 in his cross examination has not divulge any kind of injury on the body of Tholu Ram, deceased. 10. PW-4, Rangila Lal, nephew of Tholu Ram, deceased has stated that on 22.11.1992 around 9 PM when he went out of his house to fetch water, he saw Vidya Devi accused present in the court, carrying Tholu Ram on her back towards his house and placed him in front of his house and tried to open the lock of his room. When she could not open that lock, she shouted to call PW-4 to help her in unlocking the door. PW-4 enquired from Vidya Devi as to what had happened to his uncle (Chacha) i.e. Tholu Ram. Vidya DEvi stated that nothing has happened and Tholu Ram be taken inside the room. Then, PW-4 enquired from Tholu Ram himself as to what had happened. Then Tholu Ram, deceased told that Balak Rand Vidya Devi has beaten him with fist and kick blows. PW-4 further stated that his Chaha, Tholu Ram was looking scared and frightened. Further that Tholu Ram told to PW-4 that he be taken inside and that he wanted to go to sleep. Tholu Ram has divulged PW-4 that he was having pain in his neck and wanted to lodge inside his room. At that moment, PW-4 took out the key of the lock from his pocket and opened the lock and Tholu Ram was carried inside the room and put on his bed. According to PW-4 when he and Vidya Devi 11 came out after placing the deceased on his bed, Vidya Devi closed the door from outside . Further, that on reaching to his house, PW-4 informed his father, mother ad brother what he observed. Parents of PW- 4 told him that since it was very dark night, nothing could be done and that the course of action to be adopted would be decided next day. 11. In the cross examination PW-4 has stated that he could not see any injury on the body of Tholu Ram and has also stated that Tholu Ram was not drunk . From the testimony of PW-4, different contradictory version has come which frustrate the base of prosecution story. PW-4 is said to be the witness who has observed that accused Vidya Devi bringing Tholu Ram on her back and helped Vidya Devi by opening the lock taking the key from his pocket and has lodged Tholu Ram in a room. Tholu Ram had, however, told him that he was beaten by Balak Ram and Vidya Devi with fist and kicks and he was feeling pain in his neck. From the testimony of PW-4 as well as in his cross examination, nothing has come out that PW-4 has ever observed any injury of any type on the body of Tholu Ram, the deceased. 12. PW-6 is SI Lekh Ram, who is stated to have registered the case FIR Ext PG at PS. Poanta Sahib. 13. PW-7 is constable Sehdev Datt who had accompanied Swaru Ram, brother of deceased on 25.11.1992 and thereafter a complaint was lodged to the PS, Poanta Sahib. 14. PW-8 Sukhdarshan Singh, HC No.116 has only testified the affidavit Ext PH. 15. PW-9, LHC Lal Singh has only testified the affidavit Ext PJ. 12 16. PW-10 Balbir Singh is said to be associated with investigation and has stated that Vidya Devi had produced a silver ring to the police vide memo Ext PK. Such rink was taken out from the finger and was handed over to PW10. 17. PW-11 is the statement if Dr. Rakesh Dhiman, who had examined Tholu Ram on 25.11.1992 at Civil Hospital, Poanta Sahib and has observed as follows: The patient was lying supine on bed. Limbs were in flexed position. Pulse 60 per minute. BP 110/70 Mmng. Afebrile. C.N.S. The injured was drousy, disoriented in time, place and person. He had slurd speech. Cranial nerves 7th nerve left side was pasly, upper motor neurone. Pupils were equal and reacting to light. Motor system Spontaneous movement were reduced, on left side power was grade II in all groups-upper and lower limbs. Deformity (old) left shin. Tone-increased on left side in upper and lower limbs. Deep Tendon Reflexes were increased on left side in both upper and lower limbs. Plantars were down going on right side and up going on left side. Meningeal signs Neck rigidity was present and tenderness in neck muscles was also present. Skull-Normal Chest CVS Normal spine-Normal Abdomen Injuries(i) Right upper limb Arm external Aspect-Healed abrasion irregular in shape and brown coloured. 13 Diagnosis: Hemiplegia-Left side with Meningitis. 18. PW-12 is LHC Krishan Chand, PW-13 is HC Satya Pal, PW-14 is Constable Deep Aingh, PW-15 is Dilbagh Singh, Addl. SHO, PW-16 is Prem Prkash Saini is said to have associated with investigation and was taken to Mircheery, DH Hospital on 27.11.1992 for taking the photographs of the dead body. 19. PW-17 is ASI, Rahul Sharma, who got the postmortem report of Tholu Ram conducted in District Hospital at Nahan and has stated that on 9.12.1992 accused Balak Ram produced one tumbler Ext P-1 which was taken into possession seizure memo Ext PG in presence of PWs Dalip Singh and Amar Singh. Ext P1 was identified to be of Tolu Ram by his brother Sh. Jiwan Singh on the spot. In cross examination, PW-17 has however, stated that there was nothing clear in the investigation as to where the occurrence took place and where the deceased was given beating by the accused. Because of this fact, pW-17 could not show the exact place of occurrence. 20. PW-18, Amar Singh has stated on 9.12.1992 the accused presented to the police one Banta from their house in presence of PW Dalip Singh, Parahdn Gram Pachayat and Jiwan Singh. PW Jiwan Singh identified this Banta to be of his brother Tholu Ram deceased. 21. On analysis of the prosecution witnesses, we noticed that PW-1, PW-2, PW-4 and PW-5 had seen Tholu Ram, the deceased, at initial state and who have stated that they have never observed any injury on the body of Tholu Ram, whereas PW-11 Dr. Rakesh Dhiman, 14 while conducting medical legal examination on 25.11.1992 at Civil Hospital, Poanta Sahib has observed had observed injuries on the body of the deceased and PW-3 Dr. R.K.Sood , CMO, who conducted Postmortem of the dead body of Tholu Ram on 27.11.1992 has also noticed various injuries as indicated above. As such, in reference to the injuries, the prosecution witnesses .e. PW-1, PW-2, PW-3 and PW-4 are not consistent and are apparently contradictory. Different version has come from the testimony of PW-5. Presence of Pradhan along with Lamberdar is not being noticed in the testimony of PW-1. Whereas PW-4 has not bothered to participate in the investigation or has not categorically divulged as if Vidya Devi had beaten Tholu Ram. It is amazing that when Tholu Ram deceased was beaten by Vidya Devi and Balak Ram, under what circumstances, being a lady would carry Tholu Ram in an injured condition and would be taken to his house and Balak Ram was absent,