IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.356 of 2002. Decided on: September 19, 2011. ___________________________________________________________________ State of Himachal Pradesh. ……..Appellant. Versus Yadvinder @ Yadav …..Respondent. Coram Hon’ble Mr. Justice R.B. Misra, J. Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? For the appellant : Mr. R.K. Sharma, Sr. Addl. Advocate General with Mr. Rajinder Dogra, Addl.A.G. For the respondent : Mr. Anuj Gupta & Mr. Rohit Sharma, Advocates. _______________________________________________________ Per SURINDER SINGH, J : The state has felt aggrieved by the judgment of acquittal for the offence punishable under Section 302 of the Indian Penal Code, passed by the learned trial Court in Sessions Trial No.17-A/7 of 2000, on 26th May, 2001, allegedly causing death of one Krishan Chand. 2. Heard and gone through the evidence on record. 3. The facts giving rise to the present appeal case can be stated thus. On 29th March, 1999, around 6 Whether reporters of the Local papers are allowed to see the judgment? - 2 - p.m., Krishan Chand (deceased) was accompanied by PW1 Paras Ram and PW2 Desh Raj. They were going to village Pasalwala. While passing though the road, near the place known as Pathiar, a truck bearing registration No.HP-11-1909 was found parked on the side of the road. The respondent was sitting therein. Deceased was conversing with his companions and passing remarks that the truck drivers do not support their families and called the bad names to them. On hearing this, the respondent who was allegedly from the drivers’ community got enraged by these remarks, thus retorted. The deceased was given 2/3 fist blows on the chest by the respondent with the result, he fell down and sustained injuries on his head and became unconscious. When PW1 Paras Ram tried to intervene, he was also given beatings. PW2 Desh Raj rushed to village Pasalwala and informed the villagers about the occurrence. PW3 Daulat Ram, brother of the deceased was also informed. He reached the spot. He telephonically informed police. 4. Deceased was taken to the hospital at Darlaghat where he was declared dead. Police - 3 - reached the spot. PW2 Paras Ram got recorded his statement under Section 154 of the Code of Criminal Procedure (Ext.PA), which was made basis for the FIR. Police prepared the inquest report Ext.PD. They also took the photographs Exts.PG to PW of the dead body. 5. The autopsy of the dead body was performed. The report is Ext.PZ/B. As per the opinion of the doctor, deceased died due to sub-dural haemorrhage of occipital region. Viscera was sent for the forensic examination. As per report 284.9 Mg. % alcohol was found in the blood and 276.0 Mg.% in Urine of the deceased, which was too excessive. 6. The respondent was arrested, later he was granted bail. Police prepared the site Plan Ext.PZ/C and recorded the statements of the witnesses. After completing the investigation, challan was presented in the Court for the trial of the respondent. 7. The respondent was accordingly charge- sheeted for the offence punishable under Section 302 of the Indian Penal Code, to which he pleaded not guilty and claimed trial. To prove its case prosecution examined its witnesses and respondent - 4 - was also examined under Section 313 of the Code of Criminal Procedure. His case was denial simplicitor. Further he explained that the prosecution witnesses were having inimical relations with him. 8. Respondent was also called upon to enter into his defence and he examined DW1Shri Trilok Singh, father of the respondent, to show that the respondent was not a driver, but a student of M.A. 4th semester in English. 9. At the end of trial, respondent was acquitted on the ground that the statements of the alleged eye witnesses do not inspire confidence and further there is no other evidence to support the case of the prosecution, whereas there is an evidence that the fatal injury on the head could be because of fall on account of excessive consumption of liquor. 10. We have reappraised the evidence of the prosecution closely and cautiously. On the careful scrutiny, we find that PW1 Paras Ram admitted that there was civil litigation between his collateral Nandu and DW1 father of the respondent wherein he appeared as a witness on behalf of said Nandu. He also admitted that there were proceedings under - 5 - Section 107 of the Code of Criminal Procedure between him and the family members of the respondent. The above facts raise a doubt that despite such animosity, he had been accompanying the deceased. Further he also admitted that PW2 Desh Raj is a person from his relation. The statement of PW1 also does not inspire confidence at all coupled with the fact that he stated that the deceased was not drunk at that time though, he was confronted with his statement Ext.PA to this effect recorded under Section 161 Cr.P.C. He did not give any cogent reason as to why the police recorded his statement to that effect. Even PW2 Desh Raj also made the similar statement that the deceased was not drunk at the relevant time and that he even did not smell any alcohol emanating from the deceased. To this effect, he was also confronted with his statement Ext.PC. This fact which was denied by the aforesaid witnesses, is totally falsified by the statement of PW9 Dr. Vivek Chauhan, wherein he stated that on the forensic examination of the Viscera, there was concentration of 284.9 Mg. % alcohol in the blood and 276.0 Mg.% in Urine of the - 6 - deceased, which were quite high and this much of the concentration of the liquor in the body would certainly imbalance in the gait of the deceased by which he would loose his equilibrium. Surprisingly, the report of the forensic examination of the Viserca has not been placed and proved on record, which appears to be deliberately withheld which fact only surfaced in the cross-examination of the doctor. 11. Further there is also a sharp contradiction in the statement of PW1 & PW2 aforesaid. PW1 stated that the deceased was conversing with him that the drivers of the Truck do not support their families, which on hearing, respondent came out of the truck and questioned the deceased as to what he was talking about and in cross-examination he also stated that he also called the bad names of the drivers in general, whereas, PW2 completely denied this fact. He told that the deceased Krishan Chand did not address or even utter a word against the drivers. They also stated that the respondent scuffled with the deceased and given 2/3 fist blows on the chest, but no mark of injury on the chest/ thorax of - 7 - the deceased, was detected by the doctor performing autopsy. 12. Even PW3 Daulat Ram on coming to know about the death of his brother reached the spot of the alleged occurrence and informed the police telephonically at 8.30 p.m. on the same day, but in that report also he did not make any reference about the assailants. 13. Thus, all the aforesaid facts go to show that the testimonies of PWs 1 and 2, on which the entire prosecution case hinges upon, is not free from exaggeration, embellishment and material contradictions and were made only to implicate the respondent on account of enmity, which cannot be made basis for the conviction of the respondent. Learned trial Court had rightly picked up all these circumstances very well, discussed and disbelieved the prosecution story. We also do not find anything to upset the impugned judgment of acquittal. The possibility of the deceased having sustained a fatal injury on his head must be because of fall due to the consumption of excessive liquor, as such, the appeal is without any merit, hence dismissed. - 8 - 14. The respondent is discharged of his bail bonds entered upon by him during the proceedings of the case. 15. Send down the records. (R.B. Misra), Judge. September 19, 2011. (Surinder Singh), (Pds) Judge.