IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No.318 of 1995. Judgment reserved on: 25.2.2010 Date of decision: 23 .4.2010 State of H.P ..Appellant Versus Nanu Ram & ors. ..Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr.Justice Sanjay Karol, J. Whether approved for reporting ? No For the appellant: Sh.Vivek Singh Thakur, Addl.Advocate General with Sh.R.M.Bisht, Deputy Advocate General. For the respondents: Sh.Karan Singh Kanwar, Advocate for respondents No.1 and 4. _____________________________________________________ Deepak Gupta, J. This appeal by the State is directed against the judgment dated 1.9.1994 passed by the learned Sessions Judge, Sirmaur, District at Nahan in Sessions Trial No.29-N/7 of 1993 whereby he acquitted the accused of having committed offences punishable under Sections 147, 149, 302 and 323 of the Indian Penal Code. 2 The prosecution story, in brief, is that the five accused persons formed an unlawful assembly with the common object of teaching a lesson to deceased Gotu Ram and for murdering said Gotu Ram and causing injuries to his two brothers Mohi Ram and Diwru Ram. According to the prosecution, on 19.7.1992 at 11.15 a.m. Diwru Ram lodged a complaint with Police Station, Shillai to the effect that on the previous evening, he alongwith his brothers namely Mohi Ram and Gotu Ram had gone to attend a fair held in village Haryalti. When they were returning home and were near the house of accused Nanu Ram at about 9.00 p.m, the accused persons came there. All the accused persons were armed with ‘Lathis’. Nanu Ram, accused gave a blow of the lathi on the head of the Gotu Ram due to which he fell down and became unconscious. When the complaint Diwru and his another brother Mohi Ram tried to intervene, the other accused Maniya Ram dealt blows of lathis on the head and forehead of the complainant whereas accused Sohan Singh and Suiya gave blows of lathis to Mohi Ram as a result of which both of them suffered injuries. The five 3 accused then gave a thrashing to the complainant and his two said brothers with lathis. Gotu Ram died on the spot. Complainant Diwru Ram and his brother Mohi Ram guarded his dead body throughout the night and after the day break, they started for the police post. According to the complainant, there was a boundary dispute between the accused persons and the deceased and his two brothers which led to the quarrel. The aforesaid report was recorded in the police post and forwarded to the Police Station, Renukaji where formal FIR was registered. ASI Incharge Police Post, Shillai left for the site of the occurrence. He conducted the inquest and sent the dead body to the hospital for post mortem examination. The doctor Anil Kumar Gupta who conducted the post mortem found a contused lacerated wound measuring 10cmX2cmX1cm, bone deep over the right parietal region of the scalp. There was a fracture of the right parietal bone. It was opined that the fracture of the right parietal bone led to sub-dural haematoma which caused the death. 4 The Investigating Officer collected the blood stained earth, blood stained stone etc. from the spot. He also took into possession the blood stained shirts of the two injured and the deceased Gotu Ram. The accused persons were arrested. According to the prosecution, they made disclosure statements leading to the recovery of the lathis allegedly used by them. A blood stained shirt of Nanu Ram was also taken into possession. All the material was sent to the Forensic Science Laboratory and it was opined that the clothes of the deceased, the blood stained earth, the stone and one of the dandas bore human blood of “A B” group. After completing the investigation, a challan was filed and the case was committed to the Court of Sessions. The accused were charged with having committed the offences detailed here-in-above. They pleaded not guilty and claimed trial. After trial, the accused have been acquitted. Hence the present appeal by the State. The main evidence in the case is of the two injured brothers, i.e., Mohi Ram and the complainant Diwru Ram as well as the evidence of doctor Anil Kumar 5 Gupta, PW/10. The learned Trial Court noticed that the statements of the two brothers, i.e., PW/1 and PW/2 are full of contradictions which make the prosecution case doubtful. He came to the conclusion that in all probability, these two brothers had not even gone to the fair on that day. According to Diwru Ram, PW/1, he had gone to the fair all by himself but according to PW/2, Mohi Ram, he and PW/1 had gone together to the fair. This is a material contradiction in the prosecution story. PW/1 admitted that the fair ended before sunset and all the people started returning to their houses before sunset. At the same time, he stated that he and his brother Mohi Ram and Gotu Ram (deceased) were roaming in the fair till about 8.00 p.m. This cannot be correct because the sun sets much earlier. The version of PW/3, Gulab Singh is totally different. PW/3 is the Pradhan of the Panchayat. Diwru Ram, PW/1 before going to the police had informed PW/3 about the death of his brother Gotu Ram. PW/3 stated that he was told by Diwru Ram that he and his brothers Mohi Ram and Gotu Ram had gone to Nanu Ram’s house 6 on the previous night to settle the dispute pertaining to the boundary of their lands when a fight took place and Gotu Ram died. In this version, there is no mention of the fair or the fact that the injured and the deceased were waylaid when they were returning from the fair. Another inconsistency is that according to PW/1 Diwru Ram when he was going to the fair, accused Sohan Singh met him on the way and asked Diwru Ram to return Rs.50/- which he had borrowed from Sohan Singh. Diwru Ram told Sohan Singh that he would return the money after he came back from the fair and then Sohan Singh threatened him that he would teach him a lesson on his return to the village from the fair. The version of PW/2 Mohi Ram was that when his brothers (Dirwu Ram and Gotu Ram) met him at the fair, Diwru Ram told them that Sohan Singh had quarrelled with him and had threatened to teach him a lesson on his return from the fair. There is no mention of this version in the initial complaint, Ext.PA which otherwise is very detailed. The said report was lodged by Diwru Ram himself and there is no reason why he would not have mentioned that Sohan 7 Singh had threatened him since he could not return the money which he had borrowed from him. The conduct of these two brothers PW/1 and PW/2 is not normal. According to them, the incident took place at 9.0 p.m and Gotu Ram died on the spot soon after receiving the injury. They said that they remained at the site of the occurrence and guarded the dead body till the next morning. At the same time, they stated that the accused persons went to the police post, the same night to lodge the report. Both the brothers were not required to guard the dead body of the third brother. One of them could have guarded the dead body of Gotu Ram while the other went to the police post to lodge the complaint. There is no explanation why they could not call any other persons from the village and the villagers could have guarded the dead body while they went to the police post to lodge a complaint. Admittedly, these brothers have two more brothers who lived in the same village. Why were these brothers not called throughout the night? Therefore, there is no plausible explanation as to why the two brothers kept silent till the early morning 8 hours and why they did not report the matter immediately to the police. This raises a doubt that they may have been thinking over the matter throughout the night to come up with an explanation as to what they were doing near the house of accused Nanu Ram. In fact, Diwru Ram, complainant admitted that before going to the police post, he consulted Lambardar Zalam Singh and after due deliberations, they went to the police post. The two brothers have made material improvements in their version in the Court even about the manner in which the incident happened. According to PW/1, he was the first out of the three brothers to be assaulted. Thereafter, PW/2 was assaulted and lastly Gotu Ram was assaulted. But in the complaint Ext.PA with which he was confronted with, he had reported that Gotu Ram was the first person to be assaulted. This witness could give no explanation for this material contradiction. The medical evidence also does not corroborate the occular version of these witnesses. Both the brothers said that Gotu Ram was dealt two blows of the lathis on his head by Nanu Ram and Maniya Ram. 9 However, the post mortem report Ext.PC proved by PW/10 Dr.Anil Kumar Gupta shows that the deceased had only one injury on his head. This also shows that these two witnesses are not telling the truth. The first report was lodged by the accused persons. PW/10, Dr.Anil Kumar Gupta had found injuries on the parietal region of the accused Nanu Ram and Maniya Ram also but no explanation for these injuries has been given by the prosecution. The investigation had also not been fair. Even PW/1 admitted that the accused party was the first to approach the police. The police either did not record the version of the accused party or has withheld the said version from the Court. Even the dandas allegedly recovered at the instance of Diwru Ram have been stated to be not the dandas used in the fight. Both PW/1 and PW/2 have stated that Exts.P/2 to P/6 are not the dandas with which they were assaulted. This shows that the police had tried to create some evidence in the case. In view of the aforesaid discussion, the learned Trial Court was fully justified in acquitting the accused. 10 We find no merit in the appeal which is accordingly rejected. Bail bonds, if any, furnished by the accused are ordered to be discharged. ( Deepak Gupta ) Judge April 23, 2010 (Sanjay Karol) (m) Judge