IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 117 of 1998 Date of decision: 26.3.2010. State of H.P. …..Appellant. Vs. Sakal Singh …. Respondent. Coram The Hon’ble Mr. Justice Dev Darshan Sud, Judge. The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Appellant : Mr. P.K. Sharma, Addl. Advocate General with Mrs. Shubh Mahajan, Deputy Advocate General. For the Respondent : Mr. H.K. S. Thakur, Advocate. Kuldip Singh,J (Oral) The State has come in appeal against the judgment of acquittal dated 1.5.1998 passed by learned Sessions Judge, Shimla in S.Tr. No.19-S/7 of 1996. 2. The prosecution case in brief is that deceased Hari Parshad Gupta assisted by his two sons PW-1 Ramu Gupta and PW-2 Mast Ram, used to run the business of vegetables on the road side near Rivoli Cinema in Lakkar Bazar, Shimla. On 28.8.1996 at about 9 PM accused Sakal Singh who had his khokha near the site had quarreled with a friend of the deceased. The deceased intervened, this infuriated the accused and he assaulted the deceased, on the intervention of other persons they were separated. Whether the reporters of the local papers may be allowed to see the Judgment?Yes 3. The further case of the prosecution is that thereafter deceased asked his two sons to wind up the business for the day. The deceased himself proceeded towards his quarter. The accused again started argumenting with the deceased, who was sitting on the railing on the edge of the road. It is the case of the prosecution that while exchanging hot words with the deceased, the accused pushed the deceased towards valley side, as a result of which, Hari Parshad Gupta fell, rolled down about 30-40 feet below the road level and suffered head injury. He was rushed to the hospital but without gaining consciousness he died next day at about 6 O’clock in the morning. The postmortem of the deceased was conducted. 4. The Incharge Police Post, Lakkar Bazar reached the spot on information given by the doctor when Hari Parshad was taken to hospital. The statement of PW-1 Ramu Gupta was recorded and on that basis the case was registered under Section 307 IPC, which was later on converted into Section 304 IPC after the death of Hari Parshad Gupta. 5. The accused was charged for having committed offence punishable under Section 304 IPC. The prosecution has examined twelve witnesses. The accused was examined under Section 313 Cr.P.C. He denied the prosecution case. 6. We have heard learned counsel for the parties and we have also gone through the record. The statements of PW-1 Ramu Gupta, PW-2 Mast Ram and PW-6 Ram Kali are relevant in the context of prosecution case. PW-1 Ramu Gupta has stated that on 28.8.1995 at about 9 to 9.30 PM, the accused Sakal Singh had a quarrel with the friend of his father. The father of the witness intervened and thereafter Sakal Singh caught hold his father from his neck and his brother Mast Ram was present there. The father told him and his brother to pack up the vegetables from the road side. There had been again quarrel in between his father and the accused. The accused gave beatings to his father, as a result of which, his father fell down from the road towards the ice-skating rink and rolled down to a distance of 20 feet. He had injury on his head; he told the witness that he had been thrown down by accused Sakal Singh. The police had recorded his statement Ex.PA because his father had become unconscious immediately after he had told him on the spot that he had been thrown down by accused Sakal Singh. In cross- examination he has denied that his father was drunk on that date and he had fallen down due to his own negligence because he was drunk. 7. PW-2 Mast Ram has stated that on 28.8.1995 at about 9.15 PM there had been a quarrel in between the friend of his father and Sakal Singh in front of the Dhara of the accused. The deceased had intervened and thereafter the accused caught hold the deceased from his neck. The deceased was rescued by 3-4 persons from the accused. Thereafter they packed up the vegetables from the shop on the instructions of their father. He was packing the vegetables in the shop and his brother Ramu had gone towards Rivoli Cinema where deceased had gone. Thereafter Jas Karan came to him and informed that his father had been thrown down by the accused from the road towards the ice-skating rink below Rivoli Cinema. They went to the place where their father was lying. The deceased was lying unconscious and he uttered the words ‘Sakal Singh Ko Maro’. In cross-examination he has stated that there was a railing at the place from where his father was thrown down. The railing was in good condition. 8. PW-3 Raj Kumar has stated that at the time when the incident took place he was inside the shop and there was noise. He went to the place where Hari Parshad was lying. He did not support the prosecution and was declared hostile. In cross-examination conducted on behalf of the accused he has stated that railing was put there on the next day of the incident. 9. PW-4 Jas Karan has stated that he saw the people going towards Rivoli Cinema and he also followed them and saw Hari Parshad was lying in the gali of Rivoli building. He had seen at that time that Hari Parshad was having injury on his head and thereafter he was taken by his sons to the hospital. He did not support the prosecution and was declared hostile. In cross-examination conducted on behalf of the accused he has stated that he had gone to tell the sons of Hari Parshad that their father was lying in the gali behind the Rivoli building. At that time, both the sons of the deceased were sitting in the vegetable shop. 10. PW-6 Smt. Ram kali is the sister of Hari Parshad. She has stated that her brother Hari Parshad told her that two days before the incident, he had been threatened by the accused when he had demanded the payment from the accused in respect of vegetables which he had supplied to the accused. In cross-examination she has stated that they had not reported the matter to the police. 11. PW-7 Dr. Arvind Sood has stated that on 28.8.1995 at 10 PM when he was on duty in casualty department of IGMC, Shimla injured Hari Parshad was brought there. The injured was unconscious. The attendants of the injured told that there had been a scuffle and in course of that scuffle the injured had fallen. The injured smelled of alcohol. Samples of blood and urine were taken and sent to the Chemical Laboratory for analysis. He prepared the medico- legal-certificate Ex.PF. 12. PW-9 Prabal Singh has stated that on 28/29.8.1995 he was officiating Incharge of Police Post, Lakkar Bazar, Shimla. He went to IGMC hospital, Shimla and recorded the statement of Ramu Gupta. On the basis of Ex.PA, FIR Ex.PJ was registered. He prepared the site plan Ex.PK. In cross-examination, he has stated that the site from where the deceased had fallen is not visible from the place where he used to do his business or from the four khokhas which are just opposite to the place of business of the deceased. 13. PW-11 Dr. D.K. Ghosh had conducted the postmortem on the body of the deceased and prepared the report Ex.PN and his final opinion is Ex.PO. In cross-examination, he has stated that the Chemical Examiner’s report showed that the deceased had consumed liquor and this fact finds mention in his final opinion regarding the cause of death. He has stated that the injuries on the skull noticed by him could have been suffered as a result of fall from a height of 30-35 feet provided the fall was direct. 14. PW-12 Dr. Naresh Kalia has stated that the injured was referred to him by Dr. Arvind Sood for expert opinion regarding head injury. He examined the said injury and opined that probable cause of death was brain stem injury. Asphyxia due to aspiration. In cross-examination he has stated that the injuries which he had observed on the person of Hari Parshad could be suffered as a result of a fall from considerable height on hard surface. 15. The statement of PW-6 Smt. Ram Kali does not prove the guilt of the accused. She has stated that her brother Hari Parshad Gupta told her that the accused had threatened him when he had demanded the price of vegetables purchased by the accused from him. PW-1 and PW-2 sons of deceased assisted the deceased for running the business but none of them has stated that the accused had threatened the deceased when he demanded the price of vegetables sold to the accused. The statement of PW-6 Smt. Ram Kali has not been corroborated by any other prosecution witness and therefore, it cannot be believed that accused had ever threatened the deceased. 16. The statements of PW-1 Ramu Gupta and PW-2 Mast Ram are contradicting to each other on material particulars. PW-4 Jas Karan has stated that he had gone to tell the sons of Hari Parshad that their father is lying in the gali of Rivoli building. At that time both the sons of deceased were sitting in the vegetables shop. In other words actual incident did not take place in presence of PW-1 and PW-2. PW-9 Prabal Singh Investigating Officer has stated that site from where deceased had fallen was not visible from the place where he used to do his business. PW-1 has stated that the deceased had told him that he had been thrown down by Sakal Singh. PW-2 Mast Ram has stated that their father had uttered the words ‘Sakal Singh Ko Maro’. He has not stated that deceased said that he had been thrown down by the accused. PW-1 has not stated that he followed his father when he went towards Rivoli Cinema. 17. It has come in evidence that both the sons of the deceased started packing vegetables and their father proceeded towards his quarter. It means both the sons were not at the place from where their father had rolled down. In Ex.PA statement under Section 154 Cr.P.C PW-1 has stated that his father was sitting on the railing near the stall of person named Mantri. He has also stated that he and his brother ran towards Rivoli Cinema and found their father in the gali unconscious. In Ex.PA he has not stated that his father told him how he fell down. He has also stated that at that time Kaku and Mamu were on the spot. The prosecution has not examined Mantri, Kaku and Mamu. It has come in the evidence that deceased was drunk. Therefore, possibility cannot be ruled out that deceased of his own fell down and sustained injuries. The learned Sessions Judge has rightly appreciated the material on record. There is no merit in the appeal. 18. No other point was urged. 19. The result of above discussion, appeal is dismissed. Bail bonds are discharged. ( Kuldip Singh ), ( Dev Darshan Sud), Judge. Judge. March 26, 2010 (sks)