IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 397 of 1996 Date of Decision : March 20 , 2010 State of Himachal Pradesh Appellant Versus Kanwar Ram Respondent Coram: Hon’ble Mr. Justice Deepak Gupta, Judge Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the appellant : Mr. Ram Murti Bisht, Deputy Advocate General, for the appellant. For the respondent : Mr. R. K. Gauatam, Sr. Advocate, with Mr. Mehar Chand, Advocate, for the respondent. Deepak Gupta, J. (Oral) This appeal by the State is directed against the judgment dated 27.12.1995 delivered by the learned Sessions Judge, Solan, H.P., in Sessions Trial No. 9-A/7 of 1995 whereby he acquitted the accused of having committed an offence punishable under Section 302 of the Indian Penal Code. The undisputed facts of the case are that the accused Kanwar Ram and the deceased Dev Narain are both Bihari labourers. They were working as labourers with Sh. Gopal (PW-2). The deceased Whether reports of Local Papers may be allowed to see the judgment? Yes. 2 Dev Narain was married to Smt. Phulmania (PW-1). They were all residing in Shalaghat. It is alleged that on 5.1.1995 the deceased as well as the accused left the tent, where they were residing, to consume liquor. After some time the accused came back alone. On 7.1.1995 the dead body of the deceased Dev Narain was found in ‘Panechi Ki Khad’ by Smt. Bimla Devi (PW-3) who then reported the matter to the police. Thereafter, the police investigated the matter and according to the prosecution when the police reached the tent of the accused he and Smt. Phulmania tried to run away. The accused was apprehended after two days. He made a disclosure statement which led to the recovery of the stone which was allegedly used to murder the deceased. After the completion of investigation challan was filed. Since the case was triable exclusively by the Court of Sessions the same was committed to the Sessions Court. The accused pleaded not guilty and claimed trial. After the trial he has been acquitted. Hence the present appeal. It is not disputed that the accused and the deceased went to drink liquor on the fateful night. There is no eye witness with regard to the incident. According to Smt. Phulmania (PW-1) after some time the accused returned home alone. She asked him about the whereabouts of her husband but the accused replied that he was still drinking liquor. It is in the cross examination that she stated for the first time that the accused told her that he had murdered her husband. This so called extra judicial confession has come out for the first time in the cross examination and PW-1 had 3 never disclosed this fact to the police or any other person at an earlier stage. Even otherwise this statement does not inspire confidence at all. Sh. Sareen Chand (PW-5) states that on January 10, 1995 he had gone to the police station by chance and in his presence the accused made a statement that he had killed Dev Narain. This statement is Ext. PW5/A. The accused is also stated to have made a statement that he had kept a sharp edged stone in Panechi Ki Khad beneath the leaves and that he could identify the spot. This witness states that thereafter the accused led the police party to the site where the stone was kept and identified the same. Thereafter the stone was taken into possession vide memo Ext. PW 5/B. This witness states that he had come to Arki for obtaining a licence of a conductor. He also admitted that the ‘khud’ in question is full of stones. He has not given any satisfactory explanation as to what he was doing in the police station at the relevant time. The report of the forensic laboratory Ext. PW 6/C shows that the stone which was sent to it had human blood on it. However, no grouping of the blood could be done. This is the entire evidence on record. No motive is ascribed to the accused for committing the murder. Other than the recovery of the stone there is no evidence whatsoever. The recovery itself is doubtful because the witness to the recovery has not given any reasonable explanation for his presence in the police station at the relevant time. Most importantly the Doctor (PW-4, Dr. Dev Raj) does not rule out the possibility of 4 the death being on account of a fall. In fact his principle opinion is that the deceased died on account of a fall. It is only when a suggestion was given to him by the Public Prosecutor he stated that the death could be caused if a stone was directly hit on the head. No such suggestion could have been permitted to have been put to the Doctor. In the examination-in-chief no positive suggestion can be put in a manner in which it has been put in the present case. The learned trial Court was right in holding that the prosecution has failed to prove that the deceased was murdered and did not die a natural death. In view of the above discussions we find that there is no merit in the present appeal and the same is accordingly dismissed. Bail bonds furnished by the accused are ordered to be discharged. (Deepak Gupta), Judge. (Sanjay Karol), Judge. March 20, 2010 (PK)