Whether reporters of the local papers may be allowed to see the judgment? Yes. IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Criminal Appeal No.255 of 1994. Date of decision: 04.04.2008 State of H.P. ….Appellant. Versus Surinder Nath and another … Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting? No. For the appellant : Mr. P.M. Negi, Dy. Advocate General. For the respondents : Mr. Vinay Thakur, Advocate, vice Mr.T.R. Chandel, Advocate. Surinder Singh, Judge (oral). Heard. The respondents were tried and acquitted by the learned trial Court, of the offences under Sections 451 and 302 read with Section 34 of the Indian Penal Code in Sessions trial No.17 of 1991, on 15.11.1993. The acquittal of the respondents has been assailed in this appeal by the state. The brief facts of the case are that: deceased Jagat Ram was a teacher, posted in a school at Bani He had a temporary residence at village Mehre. On 31.5.1990 at about 9.35 p.m., he was in his house. The respondents are alleged to have visited him and brought him out of the house, gave him beatings with the fist and kicks. He was dragged out and taken in the bazar upto their shops. Thereafter, the respondents rang up to the police station, Barsar, informing them that a person was lying in front of their shop, under the influence of liquor. The police visited the - 2 - spot. They found Jagat Ram aforesaid under the influence of liquor. He was taken to the hospital for his medical examination. After his medical check up he was taken to the police station. He remained there for the night. Next morning, around 6 a.m., he complained of stomach-ache and urination problem. He was again taken to the hospital at Barsar, where he was hospitalized. His son Vinod Kumar (PW4) and wife Kesho Devi (PW5) attended him on the same day at about 7.30 a.m. The deceased Jagat Ram told them about having been given beatings by the respondents with fist and kicks on the previous night. He also revealed the same thing to Kashmir Singh (PW1), when he had visited the hospital during the day to enquire about his welfare around 3 p.m. Jagat Ram did not improve and his condition went on deteriorating. Thereafter, he was referred to the district hospital, Hamirpur on 2.6.1990 but he died on the same day at about 5 p.m. Kashmir Singh (PW1) reported the matter to the police and got recorded his statement Ex. PA, under Section 154 of the Code of Criminal Procedure, on the basis of which FIR Ex. PA/1 was recorded against the respondents. The respondents were arrested on 3.6.1990. They were medically examined. Pursuant to their disclosure statements, they got recovered their clothes. The autopsy of the dead body of Jagat Ram was conducted by Dr. D.N. Sharma (PW18) on 3.6.1990 at 11.15 a.m. The post-mortem report is Ex.PJ. On examination of the dead body, following injuries were found:- 1. Injuries right arm abrasion 1” x ½” on inner side of right elbow, brown scalp present. Surrounding area purplish blue. 2. Abrasion 1” x 1 ½” brown scalp present with surrounding area purplish blue. It is 3” above the elbow joint. 3. Abrasion of 2” x 1” on back of right arm 7” above elbow joint. The peritoneum was stained with blood on the inner side. Peritoneal cavity was full of dark coloured three litres blood with - 3 - clots. There were also following two lacerated wound rupture/ perforation: (i) 18” from duodenal –jejunal side 1” diameter, margin averted and irregular. (ii) Rupture/ Parporations 24” from ileo – ceaecal junction ½” diameter. It also had averted margin which were irregular. Contents were oozing out of both. Echymosis was present at the different pasta of mesentery. Multiple tears were found in mesentery of variable sizes at variable places. Mesentery and intestines were soiled with blood. Clots black coloured adhered to the parts over the tears. In the opinion of the Doctor, the cause of death was internal hemorrhage and peritonitis leading to shock and death. All of the injuries were ante-mortem in nature and these injuries were opined to be sufficient enough to cause death. The viscera was sent for chemical examination. It contained alcohol. Further according to him, probable duration of the injury and death was within 48 hours and between death and post-mortem was within 18 hours. He further opined that the injuries on the intestine as mentioned in the post-mortem could be caused by kick and fist blows. The police recorded the statements of the witnesses and after completing the investigation, the challan was presented in the court for trial. Finding a prima-facie case against the respondents, they were charge-sheeted under the aforesaid sections, to which they pleaded not guilty and claimed trial. To prove its case, the prosecution had examined its witnesses and the respondents were also examined under Section 313 of the Code of Criminal Procedure. They denied the prosecution case and also the circumstances, which were found attendant upon them. Their case was of a false implication. According to them on 31.5.1990 they had - 4 - informed the police that the deceased was lying in front of their shop under the influence of liquor and they did not know anything more than that. At the end of the trial, the respondents were acquitted. It is argued by the learned Deputy Advocate General, Mr. P.M. Negi that the learned trial court did not appreciate the evidence on record in the right perspective. He argued that when Jagat Ram was taken to the police station, Barsar, after his medical check up on 31.5.1990, he was taken back by his wife. The deceased went to his house at Bani from where he was called out by the respondents and he was given several beatings and sustained fatal injuries. He had also disclosed this fact to the witnesses. PW1 Kashmir Singh lodged the FIR against the respondents, on the basis the deceased had told him about the alleged occurrence. The learned trial court did not properly appreciate the evidence. There are grounds to convert the acquittal into conviction. We have thoughtfully considered the above arguments and have gone through the evidence on record in detail very carefully. It is an admitted fact that Jagat Ram had died at 5 p.m. on account of the ante-mortem injuries mentioned above in the hospital on 2.6.1990. Now the question is whether the respondents are responsible for causing the said injuries on the person of Jagat Ram, which caused his death? To prove this fact, the prosecution examined PW2 Karam Singh who was residing in the upper portion of the building in which deceased used to reside. He did not support the case of the prosecution. According to him, at about 10 p.m., he was in his house alongwith Des Raj, a shopkeeper, was his guest. When both of them went to their bed, Jagat Ram (deceased) also came there and he laid down on the double-bed. In the meantime, the respondents, from outside made a call to Jagat Ram. He switched on the light and asked the respondents as to what was the matter. They replied that they would like to take Jagat Ram to the police - 5 - station. On being asked as to what was the reason, the respondents told him that Jagat Ram would tell himself. On this, he went to call for Dr. S.D. Soni, Pradhan of the Bazar Committee. He was brought to the spot. It took about 20 minutes, but they did not find anybody there in the house. Even Jagat Ram was also not there. He categorically denied that Jagat Ram was given beatings by the respondents in his presence and that he was dragged in the Bazar upto their shop. PW21, Desh Raj, the guest of PW2 also did not support the prosecution case. According to him after taking meals he went to the roof–top and slept there, he did not witness any occurrence. PW3 another Des Raj has also turned hostile to the prosecution. According to him, he used to reside in his radio-repairing shop. At about 10.30 p.m. on 31.5.1990, Des Raj s/o Mehar Chand came to him and informed about the quarrel between Jagat Ram and the respondents, but when he reached the spot, he did not find anybody there. PW4 Vinod Kumar has deposed that on 31.5.1990, when he was at village Bani, his father Jagat Ram left the house at about 5 p.m. and did not return that night, he thought that he must have stayed in his house in village Mehre. He was to attend the school next day. He went to village Mehre, there he came to know that his father was beaten up on the previous night and was hospitalized. He visited the hospital at Barsar. At that time Jagat Ram was put on the drip. He was having injuries on his right eye, stomach, left elbow and on the back. He was informed by Jagat Ram that the respondents took him out from his house in village Mehre and dragged him in the bazaar and was given beatings during the previous night. Thereafter, he went to call his mother who met him in the Mehre Bazar and narrated the whole incident to her. She also visited the hospital and Jagat Ram told the same story to her. Thereafter, she sent her son (PW4) to call Kashmir Singh (PW1). Kashmir Singh visited the hospital and his father narrated the same facts about the occurrence to - 6 - him. On 2.6.1990, the condition of his father deteriorated and thereafter he was referred to district hospital, Hamirpur, where he expired around 5.30 p.m. His testimony with respect to the disclosure made by his father having been beaten by respondents does not inspire confidence as he has admitted in his cross-examination that he did not disclose this fact to the police. Since he had stated before the Court for the first time it cannot blindly relied upon. Smt. Kesho Devi (PW5) was only tendered for the cross examination by the prosecution and the defence did not cross-examine her. Since there was no examination-in-chief, the defendant had rightly not cross-examined her. Tendering her by the prosecution for the purpose of cross-examination is absolutely unknown in the criminal jurisprudence. Thus, no adverse inference can be drawn. PW1 Kashmir Singh has stated that he had reached the hospital around 3 p.m. on 1.6.1990 and met Jagat Ram in the hospital. Jagat Ram revealed that both the respondents gave beatings to him during the previous night. He had added further that Jagat Ram had told that there was one more person who could not be identified. Further according to him, he had gone to the police station Barsar on 1.6.90 to lodge the FIR, but the police did not record it. It is admitted by him that a magisterial inquiry was conducted against the police, by the SDM Hamirpur (PW9) to probe into the death of Jagat Ram, on account of the beatings given by the police. Sh. O.P. Sharma, (PW9) who was the then SDM, Hamirpur who was appointed as Inquiry Officer by the District Magistrate to look into the matter. During the inquiry, Kashmir Singh told Shri Om Prakash (PW9) that when he had asked Jagat Ram deceased in the hospital on 1.6.1990 as to what had happened, at that time he did not reveal about the alleged beatings given by the respondents but stated that Jagat Ram after keeping his hand on the stomach only told that he had pain in his stomach, but did not utter anything else. Therefore, under - 7 - these circumstances, the statement of Kashmir Singh (PW1) becomes highly doubtful. The reason for giving beatings by the respondents has also not been spelt out by the prosecution. The alleged incident took place on 31.5.1990 at abut 9.35 p.m. Jagat Ram was medically examined at 11.30 p.m. by Dr. Ms. Jyoti Shonkla. His MLC is Ex.PF. Jagat Ram was in his perfect senses but he had consumed liquor. He had a fresh lacerated wound on the lower edge and black eye left side with odema of lower eye lid. The deceased remained for the night in the police station. Next morning he is alleged to have made the complaint of stomach-ache. The deceased was hospitalized on 1.6.1990 at about 7 a.m. On 2.6.90, he was referred to District Hospital, Hamirpur. There was enough time with the wife and son of the deceased and also Kashmir Singh to lodge the report to the police, more specifically when they had came to know about the occurrence from Jagat Ram. Kashmir Singh has stated that when he had visited Jagat Ram in hospital, he had seen injuries on the back of Jagat Ram, the skin was pilled off, but this fact stands falsified by the MLC aforesaid and Post- mortem report wherein no such injury has been mentioned. His testimony is also surrounded by suspicion and is worth rejecting. Therefore, in the above circumstances, we do not find the consistency in the statements of the aforesaid witnesses in respect of the dying declaration and the manner in which the fatal injuries on the person of deceased were caused. Our doubt is further compounded by reading the inquiry report Ex.PW9/B, wherein precisely, it is mentioned that the police had kept Jagat Ram deceased in the police station on the night of 31.5.1990. Jagat Ram, though drunk, stayed in the police station and complained in the morning about the pain in the stomach. If it was so, then how he reached in the hospital Mehre, who brought him there and how he sustained the fatal injury when no such injury was detected in his MLC Ex.PF, earlier. - 8 - Thus, neither the statements of prosecution witnesses regarding the alleged occurrence inspire confidence nor the alleged dying declaration is proved. Therefore in these circumstances, the involvement of the respondents in the alleged offence stands not proved. For the reasons aforesaid, we do not find anything worth interference; as such the findings of the acquittal recorded by the learned trial court are upheld, accordingly the appeal is dismissed. The respondents are discharged from their bail bonds entered upon by them at any time during the proceedings of this case. (Surjit Singh) Judge (Surinder Singh) Judge April 04, 2008. *Pds*