IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. A No. 409 / 2003 Date of decision: 20. 9. 2010 Kaka Ram ….Appellant Versus State of H.P. ……Respondent Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 yes For the Appellant: Mr. Sunil Chauhan, Advocate. For the respondent : Mr. A.K. Bansal, Addl. AG with Mr. J.S. Rana, Assistant Advocate General. Surinder Singh J. (Oral) Appellant was tried for the offence punishable under section 302 Indian Penal Code but at the end of trial, he was convicted for the offence punishable under Section 304-II Indian Penal Code, thus sentenced to undergo imprisonment for a period of three years and to pay a fine of Rs.2000/-. In default of payment of fine, he was ordered to further undergo simple imprisonment for a period of six months which has been challenged by him in the present appeal. 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. yes - 2 - 2. In short, prosecution story can be stated thus. A dasuthan ceremony was organized by Nitya Ram in village Pajoh on account of birth of a female child in the family. On 1st August, 2002, he had invited his close relatives, including the deceased Konkiya Ram and his wife PW1 Kaulan Devi. The festivity went on in the house of Nitya Ram till late night. On some discussion, which took place inter se Nitya Ram, the father of the appellant and the deceased, the deceased is alleged to have heated- up and asked him to keep quite. On hearing this, the appellant got flared-up and gave a slap on the face of the deceased in the presence of Ramesh Chand, Keshava Ram and Hira Singh. The said persons removed him out of the room. Thereafter, the appellant is stated to have returned to the room, the deceased was standing. Appellant gave a kick- blow on the stomach of the deceased as a consequence thereof, the deceased fell down. The other members, who were present there disbursed and went to other room to sleep. After about two hours of the incident aforesaid, the deceased breathed his last. 3. In the wee hours of the morning PW1 Kaulan Devi wife of the deceased went to the house - 3 - of PW2 Arjun Singh in village Shershog about one and a half k.m. from the place of occurrence and told him about the incident which had taken place during the previous night. In turn he told her to inform PW3 Surinder Parkash, former President of the Panchayat. She went to the house of PW3 aforesaid and he was accordingly informed. Thereafter Surinder Prakash and Arjun Singh both visited the spot. Surinder Prakash and informed the police. 4. Police jotted down this information in the daily diary Ext. PW6/A. PW7 ASI Mohar Singh along with some police officials visited village Shershog where complainant PW1 Kaulan Devi was found present. Her statement Ext. PW1/A was recorded under Section 154 of the Code of Criminal Procedure. Ruka was sent for registration of the case which culminated into FIR Ext. PW7/A. 5. Police inspected the dead body and took photographs ext. P1 to P5. Site plan Ext. PW7/B of the alleged place of incident was also prepared. The inquest papers Ext. PW3/A and Ext. PW3/B were also prepared in the presence of the witnesses. - 4 - 6. The dead body was taken to Civil Hospital Sarahan. There was no mortuary thus taken to Zonal Hospital Nahan. 7. On the request of the police autopsy of the dead body was performed on 4/5 August, 2002 by PW4 Dr. Anil Gupta. He did not find any ante mortem injury. Viscera was preserved and sent for the chemical examination. No traces of poison or alcohol were detected. 8. The opinion given by the Doctor was that the case of death was cardio respiratory failure. However, no definite conclusion could be ascertained by him about the cause of death even after the receipt of the report of the Chemical analyst. His final opinion is Ext. PW4/B whereby he opined that probably cardio respiratory failure could be due to neurogenic shock (B). 9. On completion of the investigation, police came to the conclusion that the appellant was guilty of murder as such presented the challan in the court for his trial. 10. Finding a prima facie case against the appellant, he was charge- sheeted for the aforesaid offence. - 5 - 11. Prosecution mainly relied on the statement of PW1 Kaulan Devi, PW2 Arjun Singh, PW3 Surinder Parkash PW4 Dr. Anil Gupta and the Investigating Officer PW7 ASI Mohar Singh. 12. On the closure of the prosecution evidence, appellant was also examination under Section 313 of the Code of Criminal Procedure. He abjured the guilt and claimed trial. The appellant admitted his presence in the house of Nitya Ram and also that there was some argument between the deceased and his father but denied having giving slap or kick blow to the deceased, as alleged. 13. In cross examination it was suggested to PW1 Kaulan Devi that the deceased was having a liquor bout with the other relatives present in the house of Nitya Ram. He was brandishing his SBML loaded gun, which was being snatched from him by the appellant in that process its Butt hit his chest and nothing more happened. 14. The learned trial Court disbelieved the defence version and on the above evidence came to the conclusion that it was not a case of murder but facts disclosed that it was culpable homicide not amounting to murder and further that the appellant had given the kick blow on the stomach of the - 6 - deceased, he had the knowledge that this kick blow could cause his death as such convicted and sentenced him as aforesaid. 15. Shri Sunil Chauhan, learned counsel for the appellant vehemently argued that the defence raised was probablised by the statement of PW2 Arjun Singh with respect of snatching of the gun as disclosed to him by PW1 Kaulan Devi wife of the deceased as she had brought a loaded gun to him to unload it, to which Kaulan Devi in her cross- examination has denied. He pointed that the cause of death was the cardio respiratory failure of the cardio respiratory system as stated by the Doctor and also that the Doctor did not find any injury in the stomach of the deceased which had further caused any internal fatal injury. The learned counsel also pointed that the opinion of the doctor is based on the probability that the cardio respiratory failure could be attributed to the kick blow. Whereas the kick-blow theory is also not proved beyond doubt. It is further ventilated that the alleged eye witnesses named by Smt. Kaulan Devi were not examined even to show that the appellant had either given a slap to the deceased or a kick blow, even PW1, admittedly was not present in the - 7 - room where the incident had taken place, thus she was not an eye witness. Therefore, in view of the aforesaid facts, learned trial Court had wrongly convicted and sentenced the appellant. 16. Shri A.K. Bansal, learned Additional Advocate General supported the impugned judgment of conviction and sentence passed by the learned trial Court and argued that the incident in question stands proved by the statement of PW1. He also pointed out that the appellant did not explain the defence taken in the court, of the witnesses in his statement recorded under Section 313 of the Code of Criminal Procedure. 17. I have given my thoughtful consideration to the rival contention of the parties and have legally scanned and reappraised the evidence on record. 18. Although the defence taken in the cross- examination of PW1 and PW2 was not stated by the appellant and his statement under Section 313 of the Code of Criminal Procedure but that alone is not sufficient to discard the defence theory, if it stands probablised. 19. It is well settled cannon of criminal law that onus always lies upon the prosecution to prove - 8 - its case beyond reasonable doubt and in no way it shifts to the accused. Further the accused also cannot be convicted and sentenced on probabilities and the court cannot read between the lines to conclude something in favour of the prosecution. 20. In the instant case presence of the appellant and the deceased in the house of Nitya Ram, stands proved and established. It also stands established that apart from them, other relatives, namely, Rupa Ram, Ramesh Chand, Keshwa Ram, Hira Singh, Rup Ram, Daya Ram and Mast Ram were also present in the house of Nitya Ram, (none were examined). The festivity was going on. Some of them were taking liquor. Even PW1 Kaulan Devi admitted in her cross-examination that the deceased was also having a liquor bout with other relatives in the room whereas at that time, she was sitting with other relatives and ladies in a separate room. A heated discussion is alleged to have ensued between Nitya Ram and the deceased. The deceased commanded Nitya Ram to keep shut. According to the story of the prosecution, son of Nitya Ram got agitated and gave a slap to the deceased but Ramesh Chand and Hira Singh, as admitted by PW1 intervened and took him out from - 9 - the room but thereafter he returned and gave a kick blow on the stomach of the deceased. In this back ground of the prosecution story, in my opinion, the statement, at least, one of the witnesses present there should have been examined. It was incumbent and of paramount importance to divulge about the incident for the reasons, Kaulan Devi (PW1) was not present in the same room, as stated by her where the incident had taken place. By not examining one of the aforesaid witnesses, an adverse inference has to be drawn. Also for the reason that Kaulan Devi when approached PW2 Arjun Singh, did not disclose about the death of her husband, during the intervening night. Further, the defence story put forth to her in her cross- examination although denied by her with respect to the snatching of the gun from the hand of the deceased, but the existence of the gun stands proved by PW2 Arjun Singh in his cross- examination when he testified that when Kaulan Devi came to his house, she was having a loaded gun and asked him to unload it. He also stated that he had gone to the house of Nitya Ram and made inquiries about it but no body told him that dispute arose because of brandishing the gun by the - 10 - deceased. He stated that he come to know some people were holding appellant and some were holding the deceased and it was not clear how the injury had been inflicted on the deceased by the appellant as both of them were under the influence of liquor. Even when Kaulan Devi approached PW3 Surinder Prakash and informed him about the incident, immediately no report was lodged with the police but after visiting the spot PW3 had informed the police telephonically at 11.05 a.m., which was recorded in the police Station (Ext. PW6/A). Thus there was a lot of time for deliberation. Therefore, on the scrutiny of the above evidence, the prosecution could not prove that the appellant had given a fatal kick blow on the stomach of the deceased. The statement of Kaulan Devi, to this effect cannot be believed as the incident did not take place in her presence. 21. Further the autopsy of the dead body was performed after about 4 days of the alleged incident. Post-mortem report is Ext. PW4/B. Dr. Anil Gupta (PW4) admitted that he gave probable opinion but not definite, about the cause of death of the deceased that the cardio respiratory failure was attributable to the neurogenic shock. On the - 11 - scrutiny of the post-mortem report I also do not find that there was any sign of ecchymosis on the stomach of the deceased because of the kick blow. The doctor had also not detected any injury inside the stomach which could have caused neurogenic shock. The neurogenic shock could be due to the over excitement, depression or fear. Otherwise also on the scrutiny of the evidence more specifically, as stated above when PW1 was not an eye witness of the alleged incident and the witness(s) who had allegedly seen the occurrence were not examined, the prosecution case as alleged stands not proved. 22. It is no doubt a matter of regret that a valuable life has vanished from this planet but at the same time it cannot be said with authority that the appellant was responsible for it. There may be some element of truth in the story of the prosecution as alleged against the appellant but when considered as a whole, the prosecution may be true, but between “may be true” and “must be true” there is inevitable long distance to travel and the whole of this distance must be covered by the prosecution by legal, reliable and unimpeachable evidence before the appellant held guilty and - 12 - convicted. [See: Sarwan Singh Rattan Singh versus State of Punjab AIR 1957 SC 637] 23. For the foregoing reasons, in my considered opinion, on the critical analysis of the evidence, I hold that the prosecution could not prove its case beyond a reasonable doubt, the benefit of which must go to the appellant. Therefore, the judgment of conviction and sentence passed by the learned trial Court is hereby quashed and set aside. The appeal is allowed. Fine amount, if any, already deposited, be refunded to the appellant. Send down the record. September 20, 2010 (Surinder Singh), (cm) Judge.