IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.A. No. 728 of 1996. Decided on: 12.8.2010. ___________________________________________________________ State of H.P. … Appellant. Versus Subhash Chand … Respondent. ___________________________________________________________ Coram: Hon’ble Mr. Justice R.B. Misra, Judge. Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 For the appellant : Mr. Anil Jaswal, Dy.A.G. For the Respondent : Mr. Prince Chauhan, Advocate. ___________________________________________________________ R.B. Misra, J. (Oral). The present criminal appeal has come up for consideration after leave to appeal has been granted, under Section 378 (3) Cr.P.C., in reference to the impugned judgment, dated 24.4.1996, passed by the Sessions Judge, Una, acquitting the respondents-accused for the alleged involvement for the offences under Section 302 IPC. 2. In order to adjudicate the present appeal, it is necessary to give the factual background of the case that accused- respondent is alleged to have murdered his mother Sagar Devi, wife of Amar Singh on 24.8.1995 at about 2.00 p.m. after giving beatings by Subhash Chand. Subhash Chand was in the habit of giving beatings to his mother and on a fateful day, he had beaten Smt. Sagar Devi in his house and the same was observed by PW1 1 Whether reporters of the local papers may be allowed to see the judgment? 2 Smt. Urmila Devi, wife of Ashok Kumar, that is, wife of the elder brother of accused Subhash Chand. On 24.8.1996 at about 2.30/3.00 p.m., PW1 Urmila Devi heard the noise of the cry of Sagar Devi indicating “MAR DIYA MAR DIYA” and when she went to the kitchen, deceased Sagar Devi, her mother in law, was found injured. After sometime, she became unconscious. The injured Sagar Devi was taken to a Medical Officer at Gagret on whose advice, Sagar Devi was taken to Civil Hospital, Hoshiarpur, where she succumbed to her injuries on the next day i.e. 25.8.1995 in the evening. The dead body was brought back and on 26.8.1995 at about 9.15 a.m. a report was lodged with the police by PW1 Urmila Devi that her mother-in-law Smt. Sagar Devi had suffered injuries because of the kicks and fist blows given by the accused. On this report, FIR Ext. PA was registered by the police. On completion of investigation, the challan was filed in the Court and the case was committed to the Court of Session for trial. Accused was charged for the alleged offence under Section 302 IPC to which he pleaded not guilty and claimed to be tried. 3. In order to prove its case, prosecution examined as many as fourteen witnesses, whereas, in his statement under Section 313 Cr.P.C. the respondent has denied the prosecution case. 4. PW1 Urmila Devi has given the different version that her mother-in-law while making cry “MAR DIYA MAR DIYA” has told her that buffalo had kicked her and had suffered injuries. PW2 Prahlad Singh has stated that he was plastering his house, who in support of the prosecution case has only stated that when he came, 3 he noticed that the victim was in an injured condition. PW3 Dr. R.S. Dadhwal has made medical examination and has conducted post mortem of the dead body of Smt. Sagar Devi, aged about 65 years and observed as under: “A deady body of a lean and thin built old lady with black and gray hair, 4’ 11 “ in length and wearing following clothes: 1. Light blue half sleeve shirt. 2. An orthopaedic appliance (chest belt) around the chest. 3. Yellow and red printed Salwar. 4. Coco cola coloured Chuni. OBSERVATIONS: Mouth was closed, eyes closed, cornea opaque. Peripheral cyanosis over the lips and nails were present. Mild rigor mortis was present. Post mortem staining over the back was present. Purplish, fixed. Abdomen distended. Swelling over right side of chest, anterior side and lateral side of chest was present. Crepitus felt. An ante mortem bruise reddish brown colour 4” x 3” was present over the mammary region of right side of chest near the anterior axillary line. An ante mortem, curved lacerated wound 4 cm x ½ cm x 0.4 cm from let anterior superior iliac spine towards pubic symphysis with concavity upwards. No other external injury was seen. No mark of ligature was seen. CRANIUM AND SPINAL CORD Scalp, skull and vertebrae, membranes, brain spinal cord. Not opened as there was no evidence of any injury/pathology. THORAX 1. Walls, ribs and cartilages: Swelling of the chest wall as explained earlier. On opening chest wall, haemotoma on right side of chest 4 lateral side with fracture of 4th, 5th and 6th ribs over the mid axillary line. Muscles corresponding to fracture side torn. 2. Pleurae Ruptured on right side of chest corresponding to the fractured ribs side about half filled pleurae cavity with blood. 3. Larynx and trachea NAD 4. Right lung Ruptured irregularly over the middle and lower lobes corresponding to the fracture rib side. Emphysematous changes were seen. 5. Left lung Emphysematous changes were seen. No other abnormality was seen. 6.Pericardium, heart and large vessels. NAD, Heart empty. ABDOMEN: 1. Walls Normal except external injury as already described. 2. Peritoneum. NAD 3. Mouth, Pharynx & oesophagus NAD 4. Stomach and its contents. Two lacerations of 1 cm diameter, 2.5 cm apart over the anterior side of stomach present with hyperaemic surrounding area. Yellowish green fluid, about 100 ml was present with no peculiar smell. 5. Small intestines & their contents. Full of gases of decomposition and faecal matter. 6. Large intestines & their contents. -do- 7. Liver Pale 8. Spleen Pale 9. Kidney NAD 10. Bladder Empty 11. Organs of generation external & internal. Normal MUSCLES, BONES & JOINTS As already described. 5. As per opinion of PW3, the injuries found on the person of deceased would be caused by fist blows and kicks. The injuries in question are sufficient to cause death in the ordinary course of nature. Injuries in question are also possible by a hit with 5 the horn of the buffalo, with leg blow of buffalo or even by a fall on the Khunda (peg). 6. PW4 Amar Singh, the husband of the victim- deceased Sagar Devi, has stated that on the fateful day the victim was hit by horn of buffalo and was injured by the blow given by buffalo. 7. The statements of PW5 Hari Singh, PW6 Kamal Thakur, PW7 Dr. Dalip Kumar, PW8 Dr. Surinder Ganjur, PW9 Dr. M.L. Puri, PW10 Prem Singh, PW11 Anil Kumar, PW12 Hans Raj, PW13 HC Ram Nath and PW14 Inspector Chattar Singh, given in support of the prosecution case, are not material and are also not sufficient to prove the circumstances and the prosecution case. 8. On analysis of the prosecution witnesses, material on record, medical report and post mortem report, we find that injuries sustained by the victim deceased could have been caused by fist blows and also by hit with horn of the buffalo, with leg blow of the buffalo or by a fall on the ‘Khunda’ (peg). 9. Prosecution witnesses PW1 Urmila Devi, PW2 Prahlad Singh and PW4 Amar Singh being the father of the accused have been declared hostile and have not supported the prosecution case. PW1 Urmila Devi, who was relevant prosecution witness and has lodged FIR giving different version against the accused-respondent has turned hostile and stated before the Court which is in resemblance with the medical report. Out of all prosecution witnesses, none has seen the accused-respondent beating the victim deceased. 6 10. On analysis of the prosecution witnesses and material on record, two views are possible regarding inflicting of injuries on the person of deceased then that view which is in favour of the accused-respondent has to be taken by the learned Session Judge. In the present case, the prosecution has miserably failed to bring home the guilt to the accused and has failed to prove its case beyond any reasonable doubt. There is no scope of any interference in the judgment of the trial Court. Therefore, the present appeal being devoid of any merit is dismissed. (R.B. Misra) Judge. (V.K. Sharma) Judge. August 12, 2010. (cr)