IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.: 239/1996 Reserved on: 3.5.2010 Decided on: 14.5. 2010 _____________________________________________ State of Himachal Pradesh. …Appellant. Versus Sant Ram and others. …Respondents. _______________________________________________________ Coram: Hon’ble Mr. Justice Deepak Gupta, Judge. Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. For the Appellant : : Mr. Rajesh Mandhotra, Deputy Advocate General. For Respondent No.1 &2 : Mr. Naveen Bhardwaj, Advocate. For respondent No.3 : Nemo. ____________________________________________________ Per Rajiv Sharma, J. State has filed this appeal against the judgment dated 20.5.1995 passed by the learned Additional Sessions Judge, Mandi in Sessions Trial No. 31/1992, whereby respondents charged with and tried for offence punishable under section 302 read with section 34 of the Indian Penal Code, have been acquitted. 2. Case of the prosecution, in a nutshell, is that the residential shed of accused Mitter Bhadur was situated adjoining to the 1 Whether reporters of the local papers may be allowed to see the judgment? No. 2 house of deceased, Charan Dass, in Indira Awas Colony, Mandi. The passage to the residence of Mitter Bhadur was in front of the courtyard of the residential house of deceased Charan Dass. Charan Dass deceased and his wife had been objecting to the passage used by accused Mitter Bhadur and his family members. The relations between the two families were strained. On 4.5.1992 at about 6.30 P.M, accused Sant Ram and Ranjit Singh came in a drunken condition and while passing through the courtyard of the house of Charan Dass, abused PW-2 Sunita Devi. PW-2 Sunita Devi objected and told them to refrain themselves. The accused went away, however, they came back after 5-10 minutes and started hurling stones on her house. They also picked up quarrel with PW-2 Sunita Devi. PW-2 Sunita Devi sent her son Mahender Kumar to bring his father Charan Dass. He was working in R.D. Industry, Purani Mandi. Charan Dass came on the spot and made inquires from Mitter Bhadur. Mitter Bhadur told Sant Ram to finish Charan Dass. Thereafter both of them pushed Charan Dass and threw him below the Dhank (cliff). The accused ran away. PW-1 Mahender Kumar and PW-2 Sunita Devi immediately rushed to the spot and found that Charan Dass was seriously injured and was bleeding from his head and legs. PW-1 Mahender Kumar went to R.D. Industry and informed Rajinder Kapoor (PW-3), who alongwith PW-4 Pawan Kumar and PW-5 Jagat Singh came to the spot. The injured was taken to the hospital. He died at 8.20 P.M. Statement of PW-1 Mahender Kumar was recorded under section 154 of the Code of Criminal 3 Procedure on the basis of which FIR was registered. The matter was investigated by PW-17 Roop Lal, ASI. Postmortem of dead body was conducted by PW-8 Dr. D.P. Handa. The challan was put up in the Court against the respondents after completing all the codal formalities under section 207 of the Code of Criminal Procedure. 3. Prosecution examined as many as seventeen witnesses in all to prove its case against the respondents. Accused Sant Ram and Ranjit Singh pleaded innocence when they were examined under section 313 of the Code of Criminal Procedure. Accused Mitter Bhadur pleaded that path runs by the side of the courtyard of the house of deceased Charan Dass and on the date of incident, accused Sant Ram and Ranjit never visited his house and according to him Charan Dass had come in a drunken state and started abusing his family members. According to him, he fell down below the Dhank and he has been falsely implicated. The trial court acquitted the accused persons. 4. Mr. Rajesh Mandhotra, learned Deputy Advocate General has strenuously argued that the prosecution has proved its case against the accused. 5. Mr. Naveen Bhardwaj has supported the judgment of the learned trial court. 6. We have heard the learned counsel for the parties and perused the record carefully. 7. PW-1 Mahender Kumar and PW-2 Sunita Devi are the only eye witnesses. PW-1 is the son of deceased Charan Dass. He 4 has stated that accused Sant Ram had pushed his father down from the Dhank (cliff). He then stated that accused Mitter Bhadur has a house near his house and two accused had been visiting him oftenly. According to him, Ranjit and Sant Ram came to their house and started abusing them. This was objected to by his mother. Thereafter they threw stone on their house. Two accused also picked up quarrel with his mother. Thereafter his mother told him to call his father. His father inquired from accused Mitter Bhadur why two accused were quarreling with his mother. Accused Mitter Bhadur told other accused to finish his father and to settle the dispute for all times to come. Then Sant Ram gave push to his father and his father fell down about 49 feet below the Dhank of the river bank and thereafter accused ran away. He informed PW-3 Rajinder Parshad Kapoor. PW-3 Rajinder Parshad Kapoor came on the spot with PW-4 Pawan Kumar and Jagdish. On inquiry by PW-3, his father told him that he was pushed by accused Sant Ram and Ranjit, who had come to the house of accused Mitter Bhadur. He has denied that his father had become unconscious right from the moment, he fell down till his death in the hospital. However, according to him, he was semi-conscious after he fell down. 8. PW-2 Sunita Devi is the wife of deceased Charan Dass. She has deposed that accused Sant Ram and Ranjit had been visiting the house of accused Mitter Bhadur frequently. They used to pass throw their courtyard forcibly. She had been objecting to the same. Accused, namely, Sant Ram and Ranjit came in 5 drunken condition and while passing through their courtyard, they used filthy language. She objected to the same. She asked them to stop abusing her. They went away and after 5-10 minutes came back and started throwing stones on the roof of her house. She told them why they were doing so and thereafter they started quarreling with her. She sent her son PW-1 to bring his father. Her husband came and asked the accused why they were quarreling and abusing his wife. Thereafter accused Mitter Bhadur told accused Sant Ram to finish her husband to settle the score for all times to come. She has further stated that all the three accused came and accused Sant Ram gave push to her husband and threw him about 50 feet below the Dhank (cliff). Thereafter the accused ran away. She has further stated that on inquiry by Rajinder Parshad Kapoor, her husband told that accused Sant Ram pushed him and he fell down. 9. PW-3 is Rajinder Parshad Kapoor was the employer of deceased Charan Dass. He has stated that on 4.5.1992 at about 7.15 P.M., PW-1 Mahender Kumar came to him and told that accused Mitter Bhadur and his two guests were quarreling with them. Charan Dass immediately went to his house alongwith his son. At 7.45 P.M., PW-1 again came to him and told that all the three accused have thrown his father below the Dhank. He alongwith Pawan Kumar and Jagat Ram immediately rushed to the place where the injured was lying. He inquired from him and he told that all the three accused have thrown him below the 6 Dhank (cliff). He was taken to hospital where he expired within half an hour. 10. PW-4 is Pawan Kumar. He had accompanied PW-3. He has deposed that on inquiry by PW-3 Rajinder Parshad Kapoor, the injured told that accused Sant Ram has pushed him below the Dhank (cliff). They took the injured to the hospital. 11. PW-5 is Jagat Ram. He had been working as Conductor in a private bus owned by Sh. R.P. Kappor of Purani Mandi. He deposed that on 4.5.1992 at about 7.45 P.M, Charan Das’s elder son came in the office of R.D. Industry. He told them that his father has been thrown by accused Mitter Bhadur and his two guests and his father was bleeding. They went to the spot and found the injured lying on the ground. On inquiry by Sh. Kapoor, injured told that he has been thrown by accused Mitter Bhadur, Sant Ram and Ranjit. 12. PW-8 is Dr. D.P. Handa, who conducted the postmortem and issued Medical Legal Certificate Ex.PW-8/A. According to his opinion, Charan Dass died due to head injury. He has admitted in his cross-examination that the injury could be caused by any fall. The matter was investigated by PW-17 Rup Lal, ASI. 13. PW-1 Mahender Kumar has stated that his father was pushed from the Dhank (Cliff) by accused Sant Ram. However, on inquiry by PW-3 Rajinder Parshad Kapoor, his father told him that he was pushed by accused Sant Ram and Ranjit, who had come to the house of accused Mitter Bhadur. PW-2 Sunita Devi has deposed that accused Sant Ram pushed her husband and 7 threw him about 50 feet below the Dhank, but she has deposed that on inquiry by PW-3 Rajinder Parshad Kapoor, her husband told him that accused Sant Ram alone pushed him and he fell down. PW-3 Rajinder Parshad Kapoor has stated that when he inquired from the injured, he told that all the three accused have thrown him below the Dhank. PW-4 Pawan Kumar has stated that when inquired, the deceased told PW-3 Rajinder Parshad Kapoor that accused Sant Ram has pushed him below the Dhank (cliff). PW-5 Jagat Ram has stated that PW-3 was told by deceased that he has been pushed below the Dhank (cliff) by accused Mitter Bhadur, Sant Ram and Ranjit. There are contradictions in the statements made by PW-1 Mahender Kumar, PW-2 Sunita Devi, PW-3 Rajinder Parshad Kapoor, PW-4 Pawan Kumar and PW-5 Jagat Singh who pushed the deceased. In these circumstances, it is difficult to come to a definite conclusion, who pushed the deceased. It has come in the statement of PW-1 that he was not aware of the names of accused Sant Ram and Ranjit when his statement under section 154 of the Code of Criminal Procedure was recorded. It has also come in the report of the Forensic Science Laboratory that contents of alcohol were found in liver, spleen, stomach, intestine part and the blood taken from the heart of the deceased. According to PW-8, the injuries could be caused by fall. The defence of accused Mitter Bhadur is that deceased was drunk when he visited the spot and was hurling abuses. In these circumstances, theory of defence is probablised that the deceased was drunk and he fell down from the Dhank. It 8 has come in the evidence that the house of deceased was situated in thickly populated area, however, no independent witness has been associated by the police during the course of investigation. 14. Accordingly, in view of above discussion, the view taken by the learned trial court is supportable by the evidence and there is no perversity in the findings recorded by the trial court. Consequently, the appeal is dismissed. Bail bonds furnished by the respondent/accused stand discharged. (Deepak Gupta), J. (Rajiv Sharma), J. 14.5. 2010 *awasthi*