IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.A No.378 of 1993 Decided on : April 23, 2008 State of H.P. …Appellant. Versus Prakash Chand …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. P.K. Sharma, Additional Advocate General, with Mr. P.M. Negi, Deputy Advocate General. For the Respondent : Mr. Anup Chitkara, Advocate. Surjit Singh, Judge( Oral ) State has challenged the acquittal of respondent Prakash Chand on the charge of murder, punishable under Section 302 of the Indian Penal Code, ordered by the Sessions Court, vide judgment dated 9th July, 1993. 2. Deceased Ranu Ram and respondent Prakash Chand were brothers. They had one more brother named Kahnu Ram. All the three brothers and their father PW-5 Mirchu Ram lived in close vicinity having a common courtyard. Deceased and his brother Kahnu Ram used to work as bugler drum-beaters. Respondent had retired from the Army. The three brothers were habitual of drinking and often quarreled with each other, after consuming liquor. On the fateful day, i.e. 4th January, 1993, deceased Ranu Ram and his brother Kahnu Ram returned to their village, after playing band at Whether reporters of the local papers may be allowed to see the judgment? …2… some function, around 9 or 10 in the night. Respondent Prakash Chand was seen standing in the upper story of his house. He was hurling abuses. Deceased asked him as to whom he was abusing. Respondent retorted that he was abusing his family members. The two then started abusing each other. PW-5 Mirchu Ram, on hearing his two sons abusing each other, came to the spot and was able to restore peace. PW-5 Mirchu Ram then returned to his house and went to sleep in his bed room. The deceased went to his bed room on the upper floor. He then asked his wife to serve meals. When the wife of the deceased, namely PW-1 Vidya Devi, was scaling up the stairs, she saw the respondent in the courtyard with a gun in his hand. The respondent again started hurling abuses. Deceased peeped through the window of his bedroom, on hearing the abuses being hurled by the respondent. On seeing the deceased’s face sticking out of the window, the respondent fired a gun shot, which hit the deceased on his chin and the right (anterior) side of neck and face. Deceased died almost simultaneously. PW-1 Vidya Devi raised hue and cry. Woken up by the sound of gun shot, PW-5 Mirchu Ram rushed to deceased’s place. He knocked at the door. PW-1 Vidya Devi opened the door. PW-5 Mirchu Ram saw his son Ranu Ram lying in a pool of blood on the floor of his bedroom. He accompanied by the wife of his third son Kahnu Ram went to PW-3 Mingnu Ram, a Ward Panch, and told him that his son Ranu Ram had been shot dead by the respondent. PW-3 Mingnu Ram then went to Police Station Baijnath. PW-5 Mirchu Ram accompanied him. Report was lodged at the Police Station by PW-3 Mingnu Ram. …3… 3. Police went to the spot. Inquest was conducted. Dead body was sent to Civil Hospital, Palampur, for postmortem examination. PW-2 Dr. H.K. Vashisht noticed a lacerated wound over the chin. Entire face, right side of neck and temporal region were covered with clotted blood. Small marks of wound over anterior side of neck, right side of chin and right side of face, due to gun pallets, were present. Mandible bone was fractured at the chin area. Cause of death was opined to be asphyxia and haemorrhage due to gun shot injuries. 4. Police arrested the respondent. His gun Ex. P-1 together with an empty cartridge Ex. PD/3 were taken into possession. Some pallets, numbering ten, were taken out from the wound by PW-2 Dr. H.K. Vashisht. Those pallets, empty cartridge and gun were sent to the Chemical Examiner, who vide report Ex. PM opined that the empty shell had been fired through gun Ex. P-1, but he could not give any definite opinion whether the pallets recovered from the wounds, on the dead body, were part of the empty shell or not. 5. During the course of trial, prosecution examined PW-1 Vidya Devi, the wife of the deceased, as an eye-witness. Prosecution also examined PW-5 Mirchu Ram, the father of the deceased, and PW-3 Mingnu Ram, Ward Panch, to seek corroboration to the testimony of PW-1 Vidya Devi. PW-5 Mirchu Ram did not support the prosecution version. He denied that on reaching the deceased’s place he was told by PW-1 Vidya Devi that the respondent had fired a gun shot. Trial Court has disbelieved the testimony of PW-1 Vidya Devi being self-contradictory. Chemical …4… Examiner’s report Ex. PN has been observed to be an irrelevant piece of evidence. 6. We have heard the learned Additional Advocate General and the learned counsel for the respondent and also perused the record. 7. PW-1 Vidya Devi initially stated that the respondent was present in the courtyard when her husband returned in the company of his third brother Kahnu Ram, but in cross-examination she stated that the respondent was present on the first floor of his house when her husband returned. Similarly, in the examination-in- chief, she stated that she saw the respondent with the gun in the courtyard which, according to her, he brought out after peace had been restored on the intervention of her father-in-law, but in the cross-examination she stated that she saw the respondent with the gun, for the first time, through the window in the first floor of her house. At the same time, she stated that the window was only 1½ foot wide with 2 feet high and that because her husband was peeping out of the window, she could not see the courtyard or the respondent in the courtyard. 8. It may be noticed that according to the testimony of PW-5 Mirchu Ram, he heard sound of a gun shot 15 minutes after he went to his bedroom having restored the peace between his two quarrelling sons, i.e. the deceased and the respondent. PW-5 Mirchu Ram very categorically stated that he was woken up from the sleep by the sound of gun shot, meaning thereby that no hurling of abuses took place, after he had made his two sons to agree not to abuse each other. This part of the statement of PW-5 Mirchu Ram …5… indicates that no abuses were exchanged or no quarrel took place between the deceased and the respondent after PW-5 Mirchu Ram had pacified them. If it is so, there could not have been any occasion for PW-1 Vidya Devi to have looked out in the courtyard and to have seen the respondent armed with a gun, especially when her husband (the deceased) had asked her to serve him meals. Testimony of PW-3 Mingnu Ram is not relevant. According to him, PW-5 Mirchu Ram and his daughter-in-law (wife of his son Kahnu) told him that the respondent had killed Ranu Ram. But neither Mirchu nor his son Kahnu’s wife had seen the accused-respondent firing the shot. Therefore, what they told PW-3 Mingnu Ram was not relevant, either under Section 6 or Section 8 of the Evidence Act. 9. Prosecution own witnesses have stated that the deceased was a habitual drunkard and a man of quarrelsome nature and used to pick quarrels with others, while in state of drunkenness. That means he had acrimonious relations not only with the respondent but with some other persons also. 10. For the foregoing reasons, we are of the view that even though there is very strong suspicion against the respondent, but the suspicion, in the absence of specific and definite evidence, cannot be of any help to the prosecution. Consequently, the appeal is dismissed. Appeal stands disposed of. ( Surjit Singh ), J April 23, 2008(sd) ( Surinder Singh ), J