1 HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No. 557/2001 Decided on: May 10,2011 State of H.P. …Appellant. VERSUS Jitender Singh ….Respondent. 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.R.K. Sharma, Sr. Adld. AG with Mr. Rajinder Dogra, Addl. AG. For the respondent: Karan Singh Kanwar, 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 26.6.2001 passed by learned Sessions Judge, Sirmaur District at Nahan, HP, in Sessions Trial No. 64-ST/7 of 2000, thereby acquitting the accused/respondent for the offence under Sections 302 of IPC in reference to FIR No. 49 of 2000. 2. The prosecution case is that on 14.8.2000 Khazan Singh had called Sunder Singh, Anil Kumar and Nathu Ram for settling the boundary dispute. The accused Jitender and Khatri Whether the reporters of the local papers maybe allowed to see the judgment? 2 Ram were also summoned. When they were going through the path to settle the boundary dispute, an altercation took place between Khatri Ram and accused. However, Nath Ram and Sunder endeavoured to intervene and asked him not to quarrel with Khatra Ram, however, instead of accepting the suggestion of Nath Ram and Sunder Singh, accused gave a kasla blow on the head of Khatri Ram and due to such assault, Khatri Ram rolled down in the dhank. Sunder Singh went to Kafota to inform Sadhu Ram son of Khatri Ram (deceased), who came to the spot and observed dead body of Khatri Ram, deceased lying on the spot. Thereafter, the matter was reported t the police. Investigation was made and accused was charged for the aforesaid offence. 3. In order to prove its case, prosecution has examined as many as 15 prosecution witnesses, whereas through his statement under Section 313 Cr.PC, accused/respondent denied the prosecution case. 4. (PW-3) Dr. Paramjeet Lal examined the deceased and noticed the following injuries: Two wounds over head. Multiple bruises over right arm. Anterior lateral aspect, Right knee, thigh posterior medial. Lacerations over left lower limb, medial aspect and over left knee. Lacerations over left elbow joint medially with bandage. There were two wounds over head. 3 1. 3 to 4 cm open lacerated wound in left frontal region with absent bony pieces of skull. The wound is 5 to 7 cm (deep) shallow Brain matter in left frontal region of head. 2. In the left temporal parietal region there was 5 to 7 cm lacerated scalp wound without injury to skull bone and the brain matter (underlying). There were bruises over left shoulder also 5x3 cm, 3x2 cms in size. Fracture skull bone in left frontal region with ruptured underlying brain membranes and injured underlying brain matter. As per opinion of PW-3, the injuries suffered by Khatrai Ram could be possible when one rolls down from a height on a rocky surface 5. (PW-1) Sadhu Ram son of Khatri Ram, deceased has stated that he was informed by Sunder Singh and as per his information, he visited the spot and noticed the dead body of the deceased. Thereafter, he lodged the FIR. As per testimony of PW-1, Khazan Singh had erected a boundary in the Ghasni separating his portion of land and on 14.8.2000, Khazan Singh had called Sunder Singh etc. for settling the boundary dispute. On that day, Khatri Ram and Sunder Singh were also called where accused Jitender and Khazan Singh had given Kasla blow on the head of Khatri Ram by which he fell down in the Dhank when PW-1 went to the spot of occurrence, he found his father dead below in the Dhank. Accordingly, he informed the 4 police on telephone. Police came and recorded his statement. Photographs of the dead body were taken. The shoe, cap and umbrella, belonging to his father and one ‘Darat’ having blood stains, blood stained stones and soil were taken into possession by the police. 6. (PW-2) Nathu Ram has stated that he did not notice any dispute between Khatri Ram and Khazan Singh regarding their land and has further stated that about 4-5 years back, daughter-in-law of Khatri Ram gave beating to Khazan Singh. However, on 14.8.2000, PW-2 Nathu Ram, Anil Kumar, Jitender, Khazan Singh, Khatri and Sunder were present at the spot of occurrence as they were to see the boundary of their respective Ghasnis. The said land was in the shape of slope and they were going down. PW-2 observed that Khatri Ram sliding down in the Dhank. However, nothing was done by accused Jitender in his presence. PW-2, said to be present on the spot, was declared hostile. 7. (PW-4) Rattan Singh took photographs of the dead body on the spot. (PW-5) Ram Bhaj, Patwari handed over copy of Jamabandi for 1995-96 Ex PL and copy of Tatima Ex PM to the police. (PW-6) Constable Jagjit Singh recorded the report on the basis of information supplied by HC Babu Ram. (PW-7) HC Babu Ram recorded the FIR Ex PO. (PW-8) HC Lajja Ram has stated that on 16.8.2000 SI Parkash Chand deposited with him six packets which were duly sealed. Six other packets were also 5 deposited with him by LHC Iqbal Singh. (PW-9) Sunder Singh has stated that on 14.8.2000, he was called for fixing the boundary of the parties, where Nathu Ram, Anil Kumar, Jitender etc. were also present. Accused Jitender was having Kasla with him. When PW-9 with Khazan Singh were getting down followed by Nathu, Anil, Khatri and Jitender, after few minutes, PW-9 noticed that Khatri Ram was sliding down in front of them. PW-9 tried to save him, but failed. PW-9 did not see anybody giving any type of blow on the head of Khatri Ram. PW-9 was, however, declared hostile. 8. (PW-10) Indra Devi, daughter in law of the deceased has stated that on 14.8.2000 deceased had gone with Khazan Singh, Sunder Singh, Nathu Ram, Anil Kumar and Jitender for fixation of boundary, where Khazan Singh and Khatri Ram had an altercation and accused Jitender gave Kasla blow on the head of Khatri Ram by which he fell and rolled down in the Dhank. The other persons present there left that place. Then he went to Khatri Ram. At that time, Khatra Ram was alive who told her that Jitender accused had given him Kasla blow and his survival is not possible and thereafter he died. PW-10 has further stated in the cross-examination that the place where she had gone for cutting the grass on the fateful day was at a distance of 100 to 150 meters from the spot of occurrence and during those days the grass had grown up to sufficient height. As per testimony of PW-10 she was not present on the spot and further 6 stated that to reach that place where the body of Khatri Ram was lying, one has to reach by taking the lengthy round. At that time, when she reached there, Khatri Ram was smeared with blood having injuries on head, but the skull was not open. PW- 10 further stated that when Khatri Ram fell down, she was cutting grass at a height and all others Nathu, Khazan Singh etc. were seen running away and when she reached where Khatri Ram was lying, nobody was present there and she cannot say as to how much time was taken by her to reach at the place where Khatri Ram was lying. She was also not aware as to who reached there where body of Khatri Ram was lying. PW-10, however, did not disclose to the villagers or police that she saw Jitender giving Kasla blow on the head of Khatri Ram or that when she went down, Khatri Ram had told her that he had received Kasla blow from Jitender. Such fact was also not disclosed to the police either by PW-10 at the place where dead body of Khatri Ram was lying or at her house. As per the testimony of PW-10 made in cross examination though police remained in village for 2-3 days for investigation. During those 2 or 3 days, she had not disclosed the above facts to the police. As per testimony of PW-10 she had told her husband Sadhu Ram on the day of occurrence itself that accused Jitender had given kasla blow on the head of his father in law and the matter was accordingly reported to the police. 7 9. (PW-11) HC Subhash Chand and PW-12 Constable Lal and PW-13 SI Parkash Chand, have made endeaovured to support the prosecution case to the extent the role assigned to them in the discharge of their official duty,(PW- 13) has stated in the cross examination that PW-10 had not given any statement to him during his stay in the village . PW-13 has further stated that the distance between the spot from where Khatri Ram had fallen and the place where his dead body was lying was 277 feet, as measured at the spot. Umbrella, cap and shoes were lifted from different places. However, P-13 has also stated that it was incorrect that he had told at the spot that death of Khatri Ram was caused by a fall only and story of murder had been concocted in connivance with the complainant. PW-13, however, has recovered umbrella, cap and shoes from different places and in view of the testimony of PW-13, surprisingly, PW-10 had not revealed the police during visit of the police officials to the village about the manner of incident. As per testimony of PW-10, Khazan Singh, Sunder Singh, Nathu Ram, Anil Kumar and Jitender were present on the fateful day along with deceased on the spot and Khazan Singh and Khatri Ram had an altercation. In these circumstances, nothing is known what could be the cause or motive of giving Kasal blow by accused Jitender on the head of Khatri Ram (deceased) 8 As per the testimony of PW-10 when she went to Khatri Ram, he was alive and had revealed to PW-10 that Kasal bow as given by Jitender accused. The testimony of PW- 10 itself reveal that she did not state this fact to the police who came on the spot for investigation and also did not reveal this fact to Sadhu Ram PW-1. Nothing is emanating from the testimony of Sadhu Ram. On the one hand, it was PW-10 (wife of Sadhu Ram) who had informed Sadhu Ram on the fateful day about the incident, whereas, n the other hand, PW-1 Sadhu Ram, son of the deceased has stated that it was Sunder Singh who had informed him about the incident. As per testimony of PW-10, itself made in cross-examination, she neither disclosed the fact to the villagers or to the police. She had not divulged that she had observed Jitender (accused) giving kasla blow on the head of Khatri Ram and had also not divulged to anyone that when she went to Khatri Ram, deceased told her that he had received kasla blow from Jitender. The presence of PW-10 on the spot becomes doubtful, as she was away at a distance of 100 to 150 meters from the spot of occurrence and while cutting grass at a considerable height, how she came to the spot, is also not explained by her. As per testimony of PW-10, Khazan Singh, Sunder Singh, Nathu Ram, Anil Kumar and Jitender were present on the spot , whereas as per narration given by PW-1 Sadhu Ram, Khazan Singh had called Sunder Singh. In view of the testimony of Nathu Ram, he was present 9 on the spot with Anil Kumar, Jitender, Khazan Singh, Khatri Ram and Sunder. As per the testimony of PW-9 Sunder Singh, Anil Kumar, Jitender and Nathu Ram were present on the post and Jitender was having kasal with him , but Sunder Singh PW-9 had not supported the prosecution case as he had noticed Khatri Ram deceased sliding down and despite endeavour of PW-9, deceased could not be saved. 10. On the analysis of the prosecution witnesses and materials on record, we notice that testimony of PW-10 is not inspiring confidence and not reliable as in examination-in- chief, she has stated as if she had seen the occurrence and had also heard from the deceased that accused Jitender had assaulted him with kasla, consequent upon, deceased had told her that his survival is not possible, thereafter Khatri Ram died. But further statement of PW-10 made in cross examination is self contradictory and improbable when she did not disclose to anyone including the police officials and to the villagers about the incident. As per her testimony, she had told to her husband, whereas husband has lodged FIR on the narration given by Sunder Singh. 11. In these circumstances, the presence of Indra Devi is not reliable. Keeping in view the medical evidence and the facts that none has seen the accused/ respondent assaulting Khatri Ram by Kasal and that the Kasal was not proved to have been used in the said assault and nothing has 10 been brought before us that blood stains on kasal was of the deceased, the doubt is, therefore, created about the manner of occurrence and in the case of prosecution. 12. Keeping in view the inconsistencies, contradictions and improbabilities emanating from the prosecution witnesses and the opinion of medical expert, the prosecution case becomes doubtful. 13. In our considered view, prosecution has not been able to prove its case beyond reasonable doubt and has also failed to bring home guilt to the accused. Therefore, we find no scope for interference in the impugned judgment. The criminal appeal, being devoid of merit, is accordingly dismissed. 14. The bail bonds, furnished by the accused/ respondent, are discharged. ( R.B.Misra ), J. 10th May, 2011 ( V.K.Sharma ), J. (sl)