HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.208 of 1997. Decided on: August 16, 2010. State of H.P. …Appellant. VERSUS Surinder Singh & Anr. ….Respondents. Coram The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 For the Appellant: Mr.Rajinder Dogra, Addl.AG. For the respondents: Ms.Charu Gupta, Advocate. R.B.Misra, Judge (Oral) The present criminal appeal has come up for consideration after the leave to appeal has been granted under Section 378(3) of the Code of Criminal Procedure, in reference to judgment dated 1st September, 1996, passed by learned Sessions Judge, Solan, H.P., in Sessions Trial No.5-NL/7 of 1996, thereby acquitting the respondents / accused persons for offence under Section 302 read with Section 34 of the Indian Penal Code, in reference to F.I.R.No.76 of 1996 dated 14.5.1996. Whether the reporters of the local papers maybe allowed to see the judgment? …2… 2. According to the Prosecution, the deceased Ashok Kumar, resident of village Dadi Bhola, while working as Upper Divisional Clerk in Western Command, Chandi Mandir, in Tehsil Nalagarh, was killed. Om Parkash alias Chhotu elder brother of the deceased was married to Smt.Sikander Kaur, whereas, Smt.Sikander Kaur settled with Ashok Kumar deceased. On May 13, 1996, Om Parkash, Ashok Kumar, Sikander Kaur and the accused were engaged in thrashing wheat and after it was over, Ashok Kumar (deceased) retired to bed near the field, along with accused, to their respective cots. Om Parkash and his elder son Virender Singh had been lying on the cots near the cattle shed. At about 3 A.M., Ashok Kumar started wailing. On that, Smt.Sikander Kaur got awoken, she rushed to the spot, whereas Ashok Kumar was lying and observed that the accused were strangulating Ashok Kumar. In the meanwhile, Om Parkash also came there. Both of them rescued Ashok Kumar from the clutches of the respondents / accused. However, Ashok Kumar breathed his last. In this regard, Smt.Sidander Kaur lodged a report and on the basis of which, F.I.R. No.76 of 1996 dated 14.5.1996 was registered. Case was investigated and the accused were charged for offence under Section 302/34 IPC. …3… 3. In order to prove its case, the prosecution has examined as many as twelve witnesses, whereas, the respondents / accused, to their statement under Section 313 Cr.P.C., have denied the charges and prosecution case. 4. Report, Ext.PW-11/A, of PW-11, Dr.M.R.Verma, indicates that Ashok Kumar (deceased) died of ‘asphyxia’ due to strangulation, whereas, the testimony of PW-5 Dr.C.L.Bhardwaj, who examined accused Harkesh Pal Singh, has noticed no injury on his person, contrary to the prosecution case that while strangulating, the accused had sustained injuries. However, prosecution has further relied upon the testimony of PW-1 Smt.Sikander Kaur, who has stated that she was married to Om Parkash, who happened to be the elder brother of Ashok Kumar (deceased). PW-1 has further stated that she got two sons from the loins of Om Parkash, namely, accused Surinder Kumar and Virender Kumar and in due course of time she settled with Ashok Kumar and from the loins of Ashok Kumar she got two sons, namely, accused Harkesh Pal Singh and Digdesh Singh. PW-1, however, has not supported the case of the prosecution and has denied that her husband has not died of strangulation. Likewise also, Om Parkash has not supported the case of the …4… prosecution indicating that he was unaware of the death of Ashok Kumar. 5. PW-12, Amar Singh, Sub Inspector, has investigated the case and in view of his testimony, death of Ashok Kumar could not definitely be said to have been caused by strangulation. Prosecution could not, in the facts and circumstances, prove its case that Harkesh Pal Singh (accused No.2) was responsible for strangulating his father Ashok Kumar (deceased). There is lack of motive or intention on the part of the accused persons. There appears to be no instance of provocation and no prosecution witness has definitely come forward to prove the case of the prosecution. 6. On analysis of the testimonies of prosecution witnesses and material on record, the learned Sessions Judge has rightly come to the conclusion that the prosecution has failed to prove its case beyond reasonable doubt. In our considered view also, the prosecution has failed to bring home the guilt to the accused and there is no scope for interference in the impugned judgment and the criminal appeal, being devoid of any merit, is accordingly dismissed. 7. Bail bonds, furnished by the respondents, are hereby discharged. …5… 8. The Court has asked Ms.Charu Gupta, Advocate to assist this Court as legal aid counsel, which she has agreed. The documents are being provided to her and she shall be paid fees of Rs.2000/- for entire case payable to Ms.Charu Gupta, from the Legal Aid Fund of H.P. High Court. ( R.B.Misra ), J. August 16, 2010. ( V.K.Sharma ), J. (soni) …6…