IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.Appeal No.71 of 2003. Date of decision: 3.11.2011. State of Himachal Pradesh … …Appellant Versus Rai Singh alias Raju S/o Hakam Singh, Resident of Balakh, P.S. Nurpur, District Kangra, H.P. … …Respondent Coram The Hon’ble Mr.Justice R.B. Misra,Judge. The Hon’ble Mr.Justice Dev Darshan Sud,Judge. Whether approved for reporting ?1 No. For the Appellant: Mr.R.K. Sharma, Senior Additional Advocate General with Mr.Rajinder Dogra, Additional Advocate General. For the Respondent: Mr.N.S. Chandel, Advocate. Dev Darshan Sud,J. The State challenges the judgment of acquittal passed by the learned Sessions Judge, Kangra at Dharamshala. 2. The respondent-accused was charged for offences under Section 302 IPC in FIR No.109 of 2000 lodged with the Police Station, Nurpur on 4.6.2000. 3. The prosecution case in brief is that on 4.6.2000 the deceased Ashok Kumar had gone to witness wrestling tournament at Gangath. In the evening at around 5.00 P.M. he met his brother-in-law PW-3 Shiv 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes 2 Kumar and his maternal uncle PW-4 Bansi Lal. They purchased vegetables. When they were on their way back, they found accused Rai Singh drinking in a Khokha. He asked the deceased to get him liquor which request, he did not comply with. He then caught hold of the deceased and forced him to consume liquor with him. Thereafter they proceeded to their house. Near the house of one Dhobi, the accused asked for some money from Ashok Kumar to purchase liquor. On his refusal to do so, accused caught hold of Ashok Kumar from his hair and started banging his head against wall and kicked him on his abdomen. He was rescued by two witnesses PW-3 Shiv Kumar and PW-4 Bansi Lal whereafter they proceeded to Nagni Temple. There again fight ensued when Ashok Kumar was punched in his stomach, again he was rescued by these two persons. These persons then ran away from scene of occurrence, but the accused followed them and was able to overpower Ashok Kumar near the school. Here again the deceased managed to escape from his clutches. They then went to the house of Ashok Kumar. PW-6 Asha Devi, sister of PW-3 Shiv Kumar, informed them that the deceased had not reached there. They searched for him, but could not find him anywhere. It was midnight by that time. On 5th June again a search was made for him, when Ashok Kumar was brought to the house of PW-5 Sham Lal. 4. The prosecution case then proceeds that the accused had earlier kidnapped the sister of Ashok Kumar 3 against whom a case had been registered and he remained in jail for sometime. On 8th June, complaint Ex.PG was drafted by PW-8 Aslam tailor master and submitted to the Incharge, Police Post, Gangath. Ashok Kumar was then taken to the Civil Hospital, Gangath, where he was medically examined by PW-1 Dr.Mangal Dass. Next day Ashok Kumar was taken to the Civil Hospital, Nurpur and then again to Civil Hospital, Gangath from where he was referred to Pathankot. He died on the way. Postmortem was conducted by PW-2 Dr.Anil Ohri in Civil Hospital, Nurpur, who opined that death occurred due to rupture of liver, causing bleeding and shock and also due to the injuries as mentioned in the postmortem report Ex.PE. 5. The prosecution examined 11 witnesses in all. The accused denied any involvement in the crime who admitted his arrest for kidnapping the sister of Ashok Kumar and having remained in jail for sometime. 6. On the evidence on record, learned trial Court, on consideration of the evidence of PW-3 Shiv Kumar and PW-4 Bansi Lal, holds that they have supported the prosecution version. It also found that PW-3 Shiv Kumar states that Ashok Kumar was healthier than the accused who was a thin person. Shiv Kumar and Bansi Lal were stronger than Rai Singh. In these circumstances, while not rejecting the testimony of these two witnesses as being interested witnesses related to the deceased, the Court holds that the 4 entire narration of the incident becomes difficult to accept, more especially when these were three healthy persons pitted against one thin Rai Singh accused as admitted by these witnesses. The Court holds that in normal circumstances this would not be possible. We concur with the findings of the learned trial Court that the absence of any testimony on the record shows that the accused Rai Singh was well versed in Martial Art and could overpower three persons. 7. The learned trial Court then holds that these witnesses seem to be planted. The statement of Ashok Kumar in Ex.PG has been reproduced by the learned trial Court which we also take into consideration:- “Submitted that on 04.08.2000 after watching wrestling bout at Gangath, was proceeding to my house, when in bazaar Raju alias Rai Singh son of Shri Hakam Singh r/o Bhalakh met me. When we reached Nagni, Raju invited me for drinks. At that time Shiv Kumar son of Udham Singh r/o Banoli, my brother in law was with me. Rai Singh forcibly made me to drink and thereafter I was inflicted fists blows. When Shiv Kumar attempted to save, he was threatened and made to escape. I saved myself with difficulty from clutches of the accused and when was proceeding to the house, fell unconscious on the path. Next day, on 05.06.2000 at 6.30 p.m., Sham son of Rattan Chand r/o Bhalkh, saw me unconscious, lifted and took me to the house. On 6th and 7th, due to bodyache, I could not lodge report at Police Post. Today, alongwith my brother and Vice President, has come to 5 report. So, I may be got examined and action against him be taken. Sd/- Ashok Kumar son of Rasilo Ram r/o Bhalkh Dated 08.08.2000” 8. On this the Court holds that when the FIR was lodged to the police, deceased never mentioned Bansi Lal to be one of the persons present there and only name of Shiv Kumar, his brother-in-law, was mentioned. There was no word about the accused catching hold of the deceased and banging his head against the wall. The Court then considers the situs of the offence to hold that the owner of the Khokha where the liquor was consumed was not produced and in totality, the narration is diverse with no corroboration on material facts. The Court lastly also notes that in case the deceased had been dashed against wall on the way, he would have suffered some injuries in the head which were not found on medical examination. 9. On the submission made by learned Senior Additional Advocate General that all the prosecution witnesses corroborate each other on material particulars and that the two eye witnesses to the incident PW-3 Shiv Kumar, brother-in-law of the deceased and PW-4 Bansi Lal, maternal uncle of the accused, all that we need say is that the facts as alleged by the prosecution have not been established on the record of the case. What we find from the evidence is only one fact. Even the assault described in the 6 manner cannot be accepted because it was not only one place where the fight took place, but if the witnesses are to be believed, the deceased was beaten up and thrashed at three or four places. Considering the probability that a thin man could not beat three persons at one time, we hold that there is no illegality committed by the learned trial Court in acquitting the accused. We, therefore, find no merit in this appeal which is dismissed. Bail bonds furnished by the respondent shall stand discharged. (R.B. Misra) Judge. November 3, 2011. (Dev Darshan Sud) (aks) Judge.