IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 399 of 1995 Reserved on: 12.5.2009 Date of decision: 15.05.2009 State of H.P. ... Appellant Versus Babu Ram & Anr. … Respondents Coram : The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellant: Mr. Rajesh Mandhotra, Deputy Advocate General. For the respondents: Mr. Manohar Lal Sharma vice Mr. K.B. Khajuria, Advocate. Per V.K. Ahuja , J.: This is an appeal filed by the State of H.P. under Section 378 Cr.P.C. against the judgment of the Court of Ld. Sessions Judge, Kangra at Dharamshala, dated 12.8.1993, vide which the respondents were acquitted of the charge framed against them under Section 302, read with Section 34 I.P.C. Briefly stated, the facts of the case are that on 8.2.1993, at 5.20 P.M., statement of complainant Pakhlu Ram was recorded by Head Constable of Police Station Lambagaon, in which 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 he alleged that on the previous night at about 11/11.30 P.M., Harbans, Babu and Giani came to the house of one Kanku and Babu Ram started playing Taperecorder. He further alleged that his brother Kanku Ram switched off the Taperecorder, which was again put on by Babu Ram and they started dancing. Roshan Lal asked them not to dance, on which these three persons started quarrelling with Roshan Lal. It was further alleged that Babu Ram and Giani caught hold of Roshan Lal and Harbans took Danda and gave a bow on the head and arm of Roshan Lal and blood started oozing out from his head. It was further alleged that the complainant alongwith Kanku, Bachiter and Gurdas took Roshan Lal to Thural hospital for treatment and the Doctor at Thural referred him to Palampur, where the Doctor suggested that the injured be taken to Chandigarh. It was further alleged that at about 12.30 when the complainant and others were taking injured to Chandigarh, he died on way. It was also alleged in the statement that this occurrence was witnessed by the complainant, Kanku Ram and Chinto Devi. The Investigating Officer had gone to the spot on receipt of a rapat at 2.10 P.M. from the Medical Officer, Thural, in regard to the admission of an injured person and the Investigating Officer proceeded to the hospital and Pakhlu Ram, complainant, met him near the hospital and he recorded his statement, which was sent to the police and on the basis of the same, the case was registered. After investigation, the challan was filed before the Court of learned Judicial Magistrate Ist Class (II), Palampur, who committed the case to the Court of learned trial Court, who tried the respondents leading to their acquittal, as detailed above. 3 We have heard the learned counsel for the parties and have gone through the record of the case. The submissions made by the learned Deputy Advocate Genera for the appellant were that the prosecution had proved their case from the statements of three eye witnesses and medical evidence and other corroborative evidence. It was submitted that the learned trial Court had taken some minor contradictions in the statements of these witnesses, which were not very material and as such, the findings holding the respondents not guilty are liable to be reversed being perverse. On appraisal of the record of the case, it is clear that the prosecution had examined 12 witnesses to substantiate their case. Out of these , three witnesses were examined as eye witnesses including the complainant, on whose statement the case was registered and, therefore, the statements of these three material witnesses who were eye witnesses have to be appreciated. On appraisal of the impugned judgment passed by the learned trial Court, it is clear that the learned trial Court had referred to some material contradictions, which had weighed with the learned trial Court in disbelieving the prosecution story. PW-3 Pakhlu Ram and uncle of the accused, has stated that the deceased was caught hold of by accused Babu and Giani and that Danda blows were given to him by accused Harbans in their presence. He further stated that due to the injuries, the deceased had fallen on the ground and he was carried to the room. On the other hand, PW-4 Savitri Devi, who was the first to reach on the spot, has stated that she was sleeping in her house and Marri alias Maya raised an alarm and he 4 stated that she saw the deceased having been caught hold of by Babu and Giani, while Harbans gave two blows with Danda, one on the head and another on the arm of deceased in her presence. She clearly stated in cross-examination that her house was at a distance of 20 yards from the house of Kanku, though she has stated that his courtyard is visible from her house. She stated that she was awakened on account of the alarm raised by Maya Devi. She thereafter opened the door and reached the spot within a period of 2-3 minutes of her raising the alarm. The alarm being raised was “Mar Diya-Mar Diya”, meaning thereby that the blows had already been given. However, she came up with the plea that Danda blows were given in her presence and the arm of deceased was also broken. She was also confronted with her statement Ext. DA, wherein it was not recorded that the deceased was caught hold of from the left hand by Giani and from the right arm by Babu and Harbans gave two blows one on the head and another on the arm of the deceased. She stated that she had told the police that arm of the deceased was also fractured and she was confronted with her statement Ext. DA, wherein it was not so recorded. The third eye witness PW-5 Marri alias Maya Devi is the daughter of PW-3 Pakhu Ram and stated that the deceased was her step-brother. The house of the deceased adjoins that of her father’s house. She was sitting in her house at 11.00 P.M. or midnight and she heard the sound of audio tape from the house of Kanku. She stated that the deceased asked Babu not to play the audio tape, but the accused did not accede to his request and he 5 was caught hold by accused Babu and Giani, while Harbans gave him Danda blows. She stated that one blow was given on the head, while the second was given on one shoulder and third blow was given the shoulder, which is contrary to the version of other two witnesses, that one blow was given on the head and another on the arm leading to the fracture on the arm. She came up with another plea that the deceased fell down and when he was trying to get up, he was again hit by accused Harbans. This were never so stated by two witnesses mentioned above that any blow was given by accused Harbans when the deceased attempted to get up. She came up with another story that the deceased was carried to his house and all the accused came into the room where the deceased was lying injured and they gave further beatings to him in the room. This is a new version introduced by this witness and not stated by any other PWs. In cross-examination, she has stated that the courtyard of Kanku is not visible from the courtyard of PW-4 Savitri Devi, which leads to the inference that Saviri Devi could not have witnessed the occurrence as stated by her from her courtyard. In cross- examination, she stated that Danda Ext. P-1 was in the hand of accused Harbans, while the other accused were armed with dandas, similar to Ext. P-1, which was never stated by other two PWs. She has further stated that on hearing her alarm, her father Pakhlu, mother Chinto Devi and PW Savitri had come to the spot, which is in contradiction to the report lodged with the police Ext. PD, in which the names of only two witnesses who had witnessed the occurrence was mentioned by complainant Pakhlu i.e. Kanku and Chinto Devi, while the witnesses examined in the Court are PW-4 6 Savitri Devi and PW-5 Marri alias Maya Devi, who were never named in the said report. Two persons named in the report lodged with the police were not examined by the prosecution and their non-examination and examination of two other witnesses PW-4 Savitri Devi and PW-5 Marri alias Maya Devi, makes the prosecution story doubtful as to whether these witnesses had witnessed the occurrence or not. Apart from the above, PW-1 Dr. B.K. Gautam, Medical Officer, had opined that the injuries found on the person of the patient can be possibly caused with a fall head-on with force and thereafter if he rolls down. Therefore, he has not ruled out the possibility that the deceased suffered the injuries by way of fall. PW-3 Pakhlu Ram has stated in his cross-examination that when he reached the spot, the deceased was already lying on the ground in an injured condition, meaning thereby that he reached the spot after the deceased had sustained injuries. However, he again stated that the injured was given two blows in his presence, one on the head and another on the arm. He further admitted that the deceased fell on the ground and the accused ran away and he has not stated that if the deceased had fallen on the ground or was pushed. PW-4 Savitri Devi had also stated that the deceased fell down on the ground meaning thereby that he was not pushed by any person. She has admitted her close relationship with the deceased that he was the son of her father’s sister. PW-5 Marri alias Maya Devi has also stated that the deceased fell down on the ground. 7 From the above discussion, it is clear that the contradictions emerging from the statements of three eye witnesses cannot be termed as minor and they were material to consider as to whether they had witnessed the occurrence or not. These also assume significance due to the non-mentioning of the names of two eye witnesses by the complainant in the report lodged with the police. This all had weighed with the learned trial Court and rightly so in disbelieving the prosecution story. It was also not relied upon in regard to the contradictions and in regard to the recovery of Danda as to whether the same was lying at the spot or was picked up by one person or another person as has been discussed by the learned trial Court. In view of the above discussion, we find no reasons to disagree with the findings recorded by the learned trial Court that the prosecution had failed to prove their case beyond any reasonable doubt and those findings cannot be termed as perverse calling for an interference by this Court. In view of the above discussion, we accordingly hold that there is no merit in the appeal filed by the appellant, which is dismissed. Bail bonds furnished by the respondents shall stand discharged forthwith. ( Deepak Gupta ), J. May 15, 2009 ( V.K. Ahuja ), J. (BSS) 8