IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.359 of 2000 Decided on : November 1, 2010 State of H.P. …Appellant. Versus Prem Singh …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the Appellant : Mr. Mr. R.K. Sharma, Senior Additional Advocate General, and Mr. Rajinder Dogra, Additional Advocate General. For the Respondent : M/s Anoop Chitkara & Chaman Negi, Advocates. Surjit Singh, J (Oral) This appeal, by the State, is directed against the judgment dated 20th April, 2000, of learned Sessions Court, whereby respondent Prem Singh, who was tried for offences, under Sections 460, 302, read with Section 34 of the Indian Penal Code, has been acquitted. 2. According to the prosecution, deceased Kunga Ram was an old man of about 90 years. He was a moneyed man. He had made two fixed deposits with Punjab National Bank, Tissa Branch, in which he had named his son Gian Chand alias Gianu as nominee. He also used to keep cash at home, in an almirah. This fact was known to the grand- children of the deceased. Whether reporters of the local papers may be allowed to see the judgment? …2… 3. One of the grand-sons of deceased Kunga Ram and son of Gian Chand alias Gianu, namely Thelu Ram, a juvenile, in the year 1999, was deputed by the deceased to a nearby village, namely Sukrela, to fetch an Iron (electric press), from the house of one of his daughters, namely Kamlo (PW-6). Said Thelu Ram, after collecting the Iron from PW-6 Kamlo, went to the house of respondent Prem Singh. He planned with respondent Prem Singh to steal money from deceased’s almirah. Both of them started late in the night from Prem Singh’s house, for the village of the deceased. Respondent Prem Singh picked up an axe. Deceased, who used to live all alone in one of the rooms of the building, had a window in a room, leading to his room. That window had no shutters, but iron gauze. That gauze was torn open, by means of axe. Respondent Prem Singh and Thelu Ram then entered the room of deceased Kunga Ram. When they were trying to open the almirah, deceased woke up. Respondent Prem Singh allegedly hit him on his head, with the reverse side of the axe. Thereafter, almirah was broken open and cash amounting to `1,200/-, approximately, stolen from that almirah. 4. Dead body of deceased Kunga Ram was noticed next day, after 11.30 a.m. Police was informed. SI Rachhpal Singh (PW-14) reached the spot. He inspected the spot. He recorded statement of Ram Dayal (PW-7), another grandson of the deceased and son of Gianu, under Section 154 of the Code of Criminal Procedure. On the basis of this …3… statement, case was formally registered, vide FIR Ex. PQ. Inquest was conducted. Inquest report is Ex. PR. Dead body was sent to the Government Hospital, where postmortem was conducted by PW-10 Dr. Jaswant Singh, who noticed that a portion of skull was broken into several pieces and the head injury had led to death. The incident took place on the night intervening 22nd & 23rd May, 1999. 5. On 27th May, 1999, respondent was arrested. He made disclosure statement Ex. PP that he had kept hidden an axe Ex. P-13 and his blood stained clothes in his room and currency notes of `1,150/- had been kept hidden by him in a forest. On the basis of the said statement, recoveries were effected. 6. On the dead body there was a cap, which partly covered the head of the deceased. That cap is Ex. P-2. The said cap and the axe Ex. P-13, alongwith various other blood stained articles, were sent to the Chemical Examiner, who vide report Ex. PK opined that there were stains of human blood of Group-B, on the cap as also the axe. Both the respondent and his alleged accomplice Thelu Ram were found to be guilty by the police, during the course of investigation of the case. Thelu Ram, being a juvenile, case against him was filed before the Juvenile Justice Board at Una. So far as the present respondent is concerned, case was filed in the Court of concerned Judicial Magistrate, who, after complying with the requirement of Section 207 of the …4… Code of Criminal Procedure, committed the case to the Sessions Court. 7. Respondent was charged with offences, under Sections 460, 302, read with Section 34 of the Indian Penal Code, to which he pleaded not guilty. So, he was ordered to be tried. 8. Prosecution examined 14 witnesses to bring the charge home to the respondent. It mainly relied upon the circumstance that the respondent made statement, leading to the discovery of axe Ex. P-13, which was the weapon of offence. Trial Court did not believe the prosecution version and acquitted the respondent, vide impugned judgment. 9. We have heard learned Additional Advocate General as also the learned counsel representing the respondent and gone through the record. 10. Ex. PA is the statement, under Section 154 of the Code of Criminal Procedure, which was made by PW-7 Ram Dayal, one of the grandsons of deceased Kunga Ram. As per this statement, Thelu Ram, the alleged accomplice of respondent, on return from the village of PW-6 Kamlo, on the relevant evening, had stayed at his father’s house and slept in the room of his father alongwith another brother by the name of Prem Singh. This version given to the police on 23rd May, 1999 goes contrary to the prosecution story that Thelu Ram went to the village of his father’s sister Kamlo (PW-6) to fetch an electric press and after collecting the …5… press from her went to the house of respondent Prem Singh and did not return home that night. 11. Also, it has come in evidence that during the course of investigation of the case another weapon called Pratri, bearing stains of blood and a few hair, was recovered by the police from the house of Gian Chand, son of the deceased. The fact is testified by PW-5 Devi Singh as also PW-7 Ram Dayal. Investigation Officer, PW-14 SI Rachhpal Singh, however, denied the fact. We see no reason to disbelieve the statement of PW-5 Devi Singh (because he was not declared hostile), to the effect that Pratri was recovered from the house of Gian Chand and it was stained with blood and had a few cut-hair stuck to it. 12. The fact of recovery of another weapon, known as Pratri, from the house of deceased’s son Gian Chand, whom he (deceased) nominated as the person to collect money from the bank, in the event of his dying without withdrawing the money kept, in fixed deposits, creates a serious doubt about prosecution story. 13. Recovery of axe, at the instance of respondent, has also not been proved, beyond reasonable doubt. PW-5 Devi Singh, when examined again, with a view to proving axe Ex. P-13 (because when he appeared, for the first time, he was not shown the weapon), testified that when the recovery was effected, he was not inside the room from which alleged recovery was effected, but was present in another room. Second witness of the alleged recovery of …6… axe was not examined. PW-14 SI Rachhpal Singh though did state that recovery was effected at the instance of the respondent, that by itself would not prove the recovery, when PW-5 Devi Singh is not a hostile witness and on whose testimony the prosecution very much relies, has stated that axe was not recovered in his presence. In view of the abovestated position, we are of the considered view that this is not a fit case for interfering with the judgment of acquittal. Consequently, appeal is dismissed. ( Surjit Singh ), J November 1, 2010(sd) ( Rajiv Sharma ), J