IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 281 of 2002 Date of Decision : 13.9.2011 ________________________________________________________ State of H.P. ….Appellant Versus Mehar Chand ….Respondent. ________________________________________________________ Coram The Hon’ble Mr. Justice R.B. Misra, J. The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 ________________________________________________________ For the Appellant: Mr. R.K. Sharma, Sr. Additional Advocate General with Rajinder Dogra, Addl. Advocate General. For the Respondent: Mr. Sanjeev Kuthiala, Advocate with Ms. Ambika Kotwal, Advocate. ____________________________________________________________ R.B. Misra, J(oral) The present criminal appeal has come up for consideration after leave to appeal has been granted under Section 378 (3) of the Code of Criminal Procedure, against the judgment dated 13.12.2001 passed by the learned Sessions Judge, Kullu in Sessions case No. 65 of 1 Whether Reporters of Local Papers may be allowed to see the judgment? 2 2001, acquitting the accused/respondent for offences under Sections 302, IPC in reference to FIR No. 56 of 2001. 2. The prosecution case in brief is that on 4.2.2001 at 7.00 a.m. PW5 Mohan Lal son of deceased Jogi Ram notices that his father was lying unconscious in the court yard of his house. Accordingly the family members brought the deceased in the house. However, one Om Prakash of village Kushamati came to the house and informed PW5 Mohan Lal that he had seen Mehar Chand (accused) beating Jogi Ram in the house of Ram Chand, PW6. Mohan Lal visited the house of Ram Chand (PW6) and came to know from Ram Chand (PW6) that accused Mehar Chand accompanied with Hari Chand (PW7) on 3.2.2001 came to his house at about 8.00 P.M., where deceased had also visited on the same day at 10 P.M. Ram Chand, Hari Chand, accused Mehar Chand along with Shaunu Ram (tantrik) had consumed “Lugri” (home made liquor) when Jogi Ram came to their house at 10 P.M. and joined them in consuming Lugri. While consuming lugri, accused Mehar Chand asked deceased Jogi Ram that why he had uprooted trees from his nautor land. During that conversation, arguments/altercation started and deceased Jogi Ram was slapped by accused Mehar Chand and thereafter deceased Jogi Ram left the 3 house of Ram Chand (PW6). After 15 minutes accused Mehar Chand and Hari Chand (PW7) also left the house of Ram Chand(PW6). Next day, on 5.2.2001 accused Mehar Chand came to the house of Hari Chand and informed him about the death of deceased Jogi Ram. Since deceased did not gain consciousness in his house, therefore, he was admitted in Zonal Hospital, Kullu where he was examined by Dr. Mohan Lal (PW1). Jogi Ram died on 5.2.2001. ASI Kaur Singh (PW11) came to the hospital and recorded statement Ex.PW5/A under Section 154, Cr.P.C. of Mohan Lal (PW5) son of deceased and in that reference ASI Mahesh Kumar (PW3) recorded FIR Ex.PW3/A and post mortem of the deceased was conducted. Viscera was sent for chemical analysis and after investigation accused was charged for the offence punishable under Section 302, IPC. 3. In order to prove its case, the prosecution has examined as many as 11 witnesses, whereas in his statement under Section 313 Cr.P.C., the accused/respondent denied the prosecution case. 4. Dr. Mohan Lal (PW1) found that deceased was unfit for making any statement as he was unconscious and prima facie PW1 on examination did not find any symptom of any poison. Dr. Sumedh Kaul (PW4) 4 conducted postmortem examination of deceased Jogi Ram on 5.2.2001 at 3.00 P.M. and observed that there were burn marks on the chest on left side 2.5 cm X 2CM and 1.5 cm x 1.5 cm six cm above umbilious abrasions on the right parietal region of skull and right ear. The stomach contained greenish liquid. The final opinion was reserved till receipt of chemical report. The chemical report Ex.PW4/B indicated that Ex. 1 to 3 contained organo phosphorus insecticide and PW4 also opined that death of deceased was caused due to organo of phosphorus poisoning. PW4 in cross-examination has stated that at the time of postmortem he did not observe signs of poisoning on the body of the deceased such as insecticides and pesticides. 5. Mohan Lal (PW5) son of deceased Jogi Ram in his endeavour to support the prosecution case has stated that on 4.2.2001 at about 7.00 a.m. when he came out from his house, he saw his father lying in the court yard and then he shouted for his father who was unconscious and PW5 called his family members and took his father inside the house. Relatives were also informed. Om Prakash of village Kushamati came there and told that Mehar Chand had given beatings to the deceased. On Inquiry from Ram Chand it was revealed that in his house 5 Mehar Chand had fought with the deceased and had inflicted 2-4 blows to him. It is stated by PW5 that deceased was admitted in the hospital at Kullu on 4.2.2001 and next morning he expired due to the beatings and administering of the poison. PW5 has stated in cross- examination that accused had encroached the government land because of that villagers were not happy with him. 6. Ram Chand (PW6) has stated that he had called Shaunu Ram, a tantric in his house and lugri was consumed by Shaunu Ram, Mehar Chand and Hari Chand. At about 10 P.M. deceased also came to the house of PW6 and joined others in consuming lugri. While consuming Lugri, Mehar Chand asked deceased Jogi Ram that why he had uprooted the trees, arguments started and accused Mehar Chand slapped the deceased. Thereafter accused and Hari Chand left his house. Next day Mohan Lal came to PW6 to inquire about the incident . PW6 has further stated that when deceased came to his house he had already consumed the liquor. Deceased took only one cup of lugri in his house. Hari Chand(PW7) in his endeavour to support prosecution case had stated that when Ram Chand and Shaunu Ram were consuming lugri he also joined them. At about 9/10 P.M. deceased 6 Jogi Ram also came there and took lugri, accused started quarreling with the deceased in the house of PW6. However, they were separated as accused Mehar Chand slapped the deceased twice-thrice. 7. On analysis of prosecution evidences and materials on record, we notice that Dr. Sumedh (PW4) did not notice any injury on the body of the victim and had also not noticed any poison on the body of the deceased. PW4 had also not noticed other poisonous substance in the viscera at the time of postmortem examination. PW4 at the time of post mortem found only burn marks on the chest of the deceased and abrasion on right parietal region of skull and right ear. On 4th February, 2001 at about 7.00 a.m. PW5 noticed his father lying unconsciously in his court yard and came to know from Ram Chand (PW6) about beating of his father by accused Mehar Chand and came to Kullu but no intimation was given to the police. In view of the testimony of PW6, the only evidence led by the prosecution is acquisition of deceased Jogi Ram about the uprooting of trees from the nautor land of accused. Even PW5 Mohan Lal the son of the deceased has not spoken about the encroachment of government land by the accused. No positive evidence was led by the prosecution that actually deceased has 7 uprooted the trees/plants from the encroached land of the accused as such motive of crime is not established on record. As per the testimony of Ram Chand (PW6) and Hari Chand (PW7), they along with accused were consuming the lugri in the house of PW6, where the deceased had joined them at 10 P.M. As per testimony of PW6 deceased had consumed only one cup of lugri in his house. Thereafter some arguments/altercation took place between the deceased and accused Mehar Chand. Accused and Hari Chand (PW7) thereafter left the house of PW6. As per the testimony of PW6, deceased had already consumed liquor when he came to his house. None of the prosecution witness has come forward to indicate that anybody present in the house of PW6 had poured something in the cup containing lugri of the deceased. No poisonous substance such as Organo Phosphorus and pesticides was recovered from the accused or at his behest or instance. If the death of the deceased was by consuming some poisonous substances then there is no material suggesting that it was the accused alone who administered the poisonous substance to the deceased. PW7 had stated that 2-3 slaps were inflicted by accused to the deceased but surprisingly by such slapping no injury was caused to the deceased. In view of the 8 testimony of PW4 abrasion on right parietal region of skull and right ear were not possible by slap or fist blow. As such slapping by the accused to the deceased is a weak type of evidence, providing no link about the cause of death of the deceased. 8. On the analysis of the prosecution evidences and materials on record, learned Sessions Judge has rightly found that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. 9. In our considered view, the prosecution has failed to bring home the guilt of the accused beyond reasonable doubt. The appeal filed by the State is dismissed being devoid of any merit. Bail bonds furnished by the respondent are discharged. (R.B. Misra) Judge September 13, 2011 (Dev Darshan Sud), (jai) Judge