IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.524 of 1996 Decided on: May 15, 2010. State of H.P. …Appellant. VERSUS Kalia and Ors. ….Respondents. Coram The Hon’ble Mr.Justice R.B.Misra, Judge The Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 For the Appellant: Mr. Rajesh Mandhotra, Deputy A.G. For the respondents: Ms. Sulochna Kaundal, Advocate R.B.Misra, Judge (Oral) Heard learned counsel for the parties. The present Criminal Appeal has arisen after granting leave to appeal by this court in reference to judgment, dated 29.3.1996, passed by the learned Sessions Judge, Sirmour District at Nahan in Sessions Trial No. 25-N/7 of 1994 for the alleged offence under Sections 147, 149, 304 I.P.C. acquitting the alleged accused/respondents. 2. During the course of hearing of this appeal, it has been brought to our notice that the alleged accused-respondents No. 1, 5 and 6 have since died. Therefore, the appeal against these respondents has become abated. 3. In order to adjudicate the present appeal, it is necessary to give factual background of the case. On Lohri festival on 12.1.1993, Ishwar Dass (deceased) consumed liquor in village Punnerdhar in the house of Meena Ram accused. However, he was found lying unconscious on Whether the reporters of the local papers maybe allowed to see the judgment? …2… 13.1.1993 on the side of the road near the house of said Meena Ram accused. Injuries were found on his body and on a complaint made by his father, Karam Dass to the police on 16.1.1993, medical examination was conducted on 16.1.1993 at Rajgarh, where 16 injuries were found on the person of Ishwar Dass (deceased) and he was referred to District Hospital, Nahan on 19.1.1993, where he succumbed to the injuries on 20.1.1993. 4. According to the prosecution, all the six alleged accused joined a feast with Ishwar Dass (deceased) and they all consumed liquor and subsequently, Ishwar Dass (deceased)was beaten up by the alleged accused by SIL BATTA and leg blows. 5. The prosecution, in order to prove its case, has examined as many as seventeen prosecution witnesses, whereas the alleged accused have shown their innocence and have denied the allegations. 6. We have heard learned counsel for the parties and also gone through the contents of the prosecution witnesses, materials on record, medical report and the testimonies of Dr. R.K. Sood (PW-14) as well as Dr. S.P. Singh (PW-17). It appears, Ishwar Dass (deceased) died on 20.1.1993 and postmortem was conducted on 21.1.1993, whereby the death of Ishwar Dass (deceased) was said to have taken place mainly by head injury and rupture of liver. No injury was found on the person of the deceased by Dr. S.P. Singh (PW-17), who examined Ishwar Dass (deceased) on 16.1.1993. When Ishwar Dass (deceased) had no injury on 16.1.1993, the fatal injury on his head and rupture of liver in the postmortem conducted on 21.1.1993 creates doubt. Dr. S.P.Singh, when the deceased was medically examined on 16.1.1993 vide medico legal certificate Ex.PW-17/A. According to him injuries on the person of deceased, except injuries No. 10 and 13, could possibly be result of fall, whereas injuries No. 10 to 13 were in the lower portion of the body of Ishwar Dass (deceased). However, this aspect also cannot be over-looked that after consuming liquor, the victim deceased …3… might have fallen in `Dhank’ near the house of said Meena Ram and the possibility cannot be ruled out that after taking liquor with the alleged accused in the night of 12.1.1993, Ishwar Dass (deceased) will go to his house and has fallen in `Dhank’ and has sustained injuries on his person. 7. ASI Dharam Singh (PW-7) had recorded the FIR Ex. PF and on 17.1.1993 the statement of Ishwar Dass (deceased) was recorded under Section 154 Cr.P.C. Sirmour Singh (PW-8) is said to be the official from the office Chief Medical Officer, Nahan who had produced the bed head tickets and treatment given to Ishwar Dass (deceased) on 19.1.1993, before he died at District Hospital, Nahan. PW-12 Arun Kumar had taken the X-ray of Ishwar Dass (deceased) on 20.1.1993 before his death, whereas ASI Bhagat Ram, (PW-11) had recorded the statement of Ishwar Dass (deceased) under Section 154 Cr.P.C. Ex. PR is the postmortem report prepared. Dr. R.K. Sood (PW-14) had conducted the postmortem on 21.1.1993 on the body of the deceased. According to his opinion, the deceased died due to head injury and rupture of liver, which he actually had sustained within six to eight days. The probable date of such injuries comes to between 14th to 16th January, 1993. There is no such case of the prosecution that the alleged accused had even given beatings to Ishwar Singh (deceased) between 14th to 16th January, 1993 also. Undisputedly, the deceased was medically examined by Dr. S.P. Singh on 16.1.1993 at 1.30 p.m. and perusal of the medical report Ex. PW-17/A and the testimony of Dr. S.P. Singh (PW-17) reveals that no injury on head or liver was noticed on the body of Ishwar Dass (deceased). When no such injury on the head and liver was noticed on 16.1.1993 by Dr. S.P.Singh (PW-17), the only analysis could have been derived that the deceased could have received such injuries on his head and liver, which proved fatal to his life after his medical examination on 16.1.1993. The testimony of Dr. S.P.Singh (PW-17) is indicated in the following paragraph:- …4… “....In case the spleen is ruptured, then the patient goes into shock and comma and he may die within four hours in case no treatment or blood transfusion is given. Rupture of liver is rather more serious. It is correct that I had not noticed any head injury on the patient during his medical examination on 16.1.1993. If he had received any head injury on 12.1.1993, then his position would have been critical and it would have been manifested within forty- eight hours.” 8. On analysis of medical report, it appears that rupture of liver is very serious and goes into shock and comma even patient could die within four hours, if treatment or blood transfusion is not given. If the deceased had received injuries on 12.1.1993, then in all probabilities, it should have been manifested by 15.1.1993 and it could have been noticed by Dr. S.P.Singh (PW-17), who medically examined the deceased on 16.1.1993 at 1.30 p.m. But, Medico Legal Certificate, Ex. PW-17/A and testimony of Dr. S.P.Singh (PW-17) reveals that no such injury was ever in existence, as such question of inflicting these injuries on the head and rupture of liver by the alleged accused on 12.1.1993 becomes doubtful. When serious injuries of such nature, for instance, injury on head and rupture of liver, which can be fatal to life of deceased, have not been proved to have been inflicted by the alleged accused, it became doubtful that the alleged accused are guilty of offence under Section 304 IPC. On analysis, we find that nobody has observed beating of deceased on 12.1.1993 by anybody. The only allegation that all the alleged accused had consumed alcohol with the deceased and allegedly have beaten Ishwar Dass (deceased) with SIL BATTA. In Gram Panchayat few persons have alleged that the alleged accused have admitted to have consumed alcohol with Ishwar Dass (deceased) and beaten him up with SIL BATTA. It appears that the alleged accused said to have stated in Panchayat confession by Karam Dass, father of deceased, where the alleged accused Hira Pal, Om Parkash and Meena Ram were summoned by the said village Panchayat consisting of …5… Daya Nand, Jalap and Raghu Dass. Daya Nand (PW-4) and Jalap (PW-5) have simply stated that these three alleged accused Heera Pal, Om Parkash and Meena Ram have stated that they have committed mistake and they are apologestic before the said Gram Panchayat since they had consumed liquor with the deceased and because they had offered Rs. 100/- because on returning home, the deceased had fallen from the `Dhank’ and received injuries. The statement of these three alleged accused was not treated as extra judicial confession for committing the alleged offence. The statements of these witnesses were found by the trial court to be not constituted in extra judicial confession before the said village Panchayat as the principle of extra judicial confession, reliance should be clear, unambiguous and not otherwise. The trial court, therefore, has rightly found that the statement of such alleged accused before the Panchayat does not constitute any extra judicial confession with regard to the committal of crime. 9. FIR Ex. PF was said to have been recorded at the instance of deceased on 16.1.1993 which was not treated as dying declaration, wherein the deceased had clearly stated that all the alleged accused had given beatings to him with SIL BATTA his shoulder and leg blows. No doubt, FIR Ex. PF was recorded on 16.1.1993 at the instance of the deceased, but such FIR and the contents therein cannot be used as dying declaration for the purpose of Chapter-II (from Sections 5 to 55) of Evidence Act. Utmost the contents of FIR could be used as a corroborative material by the prosecution. For the sake of argument, without treating it correct that FIR Ex. PF is being treated as dying declaration, still one important aspect cannot be ignored that there is no specific clear recital by Ishwar Dass (deceased) that any of the alleged accused on 12.1.1993 had inflicted injury on the head and liver of the deceased. …6… 10. We have made our analysis, as indicated above. We find that apparent contradictions are in existence between two reports of doctors. Medical report of 16.1.1993 and postmortem report, dated 21.1.1993 is not in harmony and is contradictory and the existence of serious head injury and rupture of liver noticed on the body of the deceased creates a serious doubt about its existence and time of its infliction. 11. In our considered view, the learned Sessions Judge, on the basis of the material on record and the prosecution witnesses as well as medical report, has correctly found that the prosecution has failed to prove its case beyond reasonable doubt and has correctly acquitted the alleged accused-respondents. 12. In view of the above discussion, there is no merit in this appeal which is accordingly dismissed. The bail bonds, furnished by the accused, are discharged forthwith. ( R.B. Misra ), J. May 15, 2010(K) ( V.K.Sharma ), J.