HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No. : 170 of 1995 Reserved on: 23.4.2009 Decided on: 27.4.2009 State of Himachal Pradesh ……… Appellant. Versus Arjun Singh and others ………Respondents. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the Appellant: Mr.R.M. Bisht & Mr.Rajesh Mandhotra, Deputy Advocate Generals. For the respondents: Mr.M.A. Khan, Advocate. Per V.K. Ahuja, J.: This is an appeal filed by the State of Himachal Pradesh under Section 378 of the Cr.P.C. against the judgment of the court of learned Sessions Judge, Kangra at Dharamshala, dated 16.3.1994, vide which the respondents were acquitted of the charge framed against them under Sections 302 read with Section 34 of the Indian Penal Code and under Sections 25 and 27 of the Arms Act. The prosecution story in brief is that on 9.5.1993 at 3.05 a.m., a report was lodged with the police by one Mohinder Singh in which he alleged that on 8.5.1993 at about 9.15 p.m., Arjun Singh accompanied by his Bhanja came to the house of his brother Kuhku Ram, who were having guns with them and they asked his brother to accompany them since they had some work with him. His brother told them to talk at the house itself but they asked him to accompany them since ___________________________________________ Whether reporters of local newspapers may be allowed to see the judgment? Yes. it could not be talked there. On this, his brother accompanied Arjun Singh and his nephew. Thereafter, his brother’s wife Rano Devi asked Jodha Ram, the son of his uncle, to follow them and see as to where Arjun Singh had taken her husband. He stated that he alongwith Jodha Ram followed them towards the railway line where they found that Arjun Singh was proclaiming to his brother as to why he had deposed against him at the Police Station and he put the gun on the neck of his brother and fired and his brother Kuhku Ram fell down. While leaving the place, Arjun Singh proclaimed that if any person followed them, they would kill them and the complainant raised an alarm and several persons came there from the village. The said Kuhku Ram was taken to PHC Nagrota Surian and doctor declared his brother dead. On this report, a case was registered and after registration, the challan was filed before the court of the learned Sub Divisional Judicial Magistrate, Dehra, who committed the case to the learned trial Court. Charges were framed against the respondents as under: 1. Arjun Singh Section 302 IPC & Section 25 of Arms Act. 2. Parshotam Lal Section 27 of Arms Act. 3. Kartar Singh Section 27 of Arms Act. 4. Des Raj Section 302 read with Section 34 of IPC & Section 25 of Arms Act. 5. Mulkh Raj Section 302 read with 34 of IPC & Section 25 of Arms Act. The learned trial Court tried the respondents leading to their acquittal. We have heard the learned Deputy Advocate General for the appellant and the learned counsel for the respondents. We have been taken through the evidence by the learned Deputy Advocate General for the State, who has submitted that the statements of two eye witnesses, coupled with other evidence, were sufficient to prove the guilt of the respondents and the learned trial Court had wrongly acquitted the respondents keeping in view the minor infirmities in the statements of the prosecution witnesses, which findings are liable to be set aside. On appraisal of the record of the case, it is clear that the prosecution had examined 18 witnesses in all. The findings that the deceased died as a result of gunshot stand proved from the testimony of PW-1 Dr.G.D. Sharma of Zonal Hospital, Dharamshala, who had conducted the post mortem examination of the deceased. He found a bullet shot wound in the middle of the neck about 2” in diameter with blackening around the wound. The cause of death was due to profuse bleeding and obstruction to the respiration due to the bullet shot which led to the damage to the major vessels in the neck, trachea and the left lung. PW-1 also recovered six pallets from the dead body. The most material witnesses in the present case are the two eye witnesses and the wife of the deceased. PW-2 Mohinder Singh, who had lodged the report Ext.PB with the police, has stated, as alleged by him in the complaint that he was told by his sister-in-law, the wife of the deceased Kuhku, that accused Arjun Singh alongwith his nephew Mulkh Raj had come with guns in their hands and had taken her husband. She asked him to follow and find out as to why her husband had been taken away by two of the accused. He further stated that she told him that she had already sent Jodha Ram for this purpose towards the railway line. He also proceeded towards the railway line and when he reached at a shop near the railway line, he saw his brother Kuhku going alongwith accused Mulkh Raj and Arjun Singh towards the railway line. Jodha Ram was about 4 paces ahead from him. He was about 20 feet from the place where the accused and the deceased were standing. He heard Arjun Singh saying to his deceased brother that he would be taught a lesson for having deposed against him to the police. Then he fired at his brother. He stated that Jodha Ram was also present when the shot was fired by the accused Arjun Singh. He raised an alarm and on hearing it, number of persons came to the spot, but they have not been named by him either in the report Ext.PB or in his statement. He further stated that while running away, the accused threatened that if anyone dared to come near or followed them, he would be dealt with in the similar manner. The presence of PW-2 Mohinder Singh has to be proved at the spot before his statement can be relied upon. He stated that he could see the accused in the light of the house of Johndu Ram, which was nearby. He was confronted with his report Ext.PB wherein there was no mention of the light coming from the house of one Johndu Ram. He admitted that it was a dark night. He was confronted with the minor improvements made by him in his statement as compared to the report Ext.PB lodged by him with the police in which the sequence of events was not mentioned as stated by him that two of the respondents came to their house armed with gun and had taken away his brother alongwith them. He was also confronted with his report Ext.PB wherein he had not mentioned that his sister-in- law had told him that she had already sent Jodha Ram after the accused persons and his brother. He was also confronted with the report Ext.PB wherein it was not mentioned that Jodha Ram was ahead by 4 paces. The improvements made cannot be termed as material but these improvements, coupled with the fact that this witness has stated that the deceased had not taken his dinner before he was taken away by two of the accused, had weighed in the mind of the learned trial Court in not relying upon the prosecution case. He admitted that the deceased was his step-brother but was residing separate from him. He stated that Jodha Ram is the son of his paternal uncle, but he lives separate. He denied the suggestion that the deceased died at 11.00 p.m. having been shot by some unknown person and the accused were falsely implicated and that was the reason that there was intentional delay in making the FIR. It appears from his statement that he was in his house and had been sent by his brother’s wife and since he was in his house, it can be argued that he cannot be said to have a knowledge if the deceased had already taken the food or not, as per the medical evidence, which shall be referred below. Coming to the testimony of second eye witness PW-3 Jodha Ram, he has stated that he was sitting in the house of the deceased and both the accused persons came there and took his brother. He has also stated that the wife of the deceased, who was present there, had served the meals for the deceased, but the deceased had not taken his meals as yet. He further stated that the wife of the deceased suspecting something sent him behind the accused and the deceased. He stated that he was being followed by PW-2 Mohinder Singh. He was at a distance of about 15’ from the accused and the deceased when they were going towards the railway line. Accused Arjun Singh fired at the deceased, who fell down injured at the spot. This witness was present at the spot when the deceased was taken by two of the respondents and he can be said to have the knowledge if the deceased had taken the meals or not and he is specific that the deceased had not taken the meals at that time. The fact that the undigested food was found in the body of the deceased stands established from the statement of PW-1 Dr.G.D. Sharma, who performed the post mortem on the dead body and observed in this regard that there was undigested food and according to him, the deceased must have taken the food within two hours before his death. The fact that PW-3 Jodha Ram had the knowledge about the taking of the meals by the deceased prior to the occurrence is not very material, but this fact, if proved wrong, goes to the root of the case and what is material is the fact whether this witness was present at the time the two of the respondents took the deceased with them or not. This could be proved from the cross examination only if the witness was present at that time or not and for this reason, the false version given about this fact by the witness had weighed in the mind of the learned trial Court in disbelieving the prosecution story which findings cannot be termed as perverse. Apart from the above, the prosecution examined PW-4 Rano Devi, wife of the deceased Kuhku Ram, who also corroborated the testimony of both the abovementioned witnesses as to how the two of the respondents came to her house, took her husband and she sent Jodha Ram and Mohinder Singh, PW-3 and PW-2, respectively, to follow the deceased and two of the respondents. However, in cross examination, she tried to improve her version that her husband had taken a Chapati in the evening and then had gone to bazar and had returned around 7-8 p.m. She stated that these facts had been told by her to the police and she was confronted with her statement Ext.DB, where it is not so recorded. It appears that this addition may have been made by this witness to corroborate the post mortem report, which referred to the undigested food in the body of the deceased. Besides this, it has also been pointed out that there has been delay in lodging the FIR, which has not been rather discussed by the learned trial Court directly and any finding given in that regard. However, the delay in lodging of FIR, though not fatal in the case, cannot be ignored altogether also. It is in evidence that the occurrence had taken place around 9.30 p.m. and the deceased was immediately taken to the hospital at PHC Nagrota Surian, which was at a distance of 14 kms. from the Police Station, as per the FIR Ext.PB. The explanation given by PW-2 Mohinder Singh for late lodging of the report at 3.05 a.m. is that no bus was available at that time and, therefore, there was a delay in lodging the report. However, it has come up in the statement of the complainant PW-2 Mohinder Singh itself that taxies, scooters and motorcycles are available at Nagrota Surian and, therefore, it cannot be held that he could not engage any vehicle to reach the Police Station and lodge the report immediately. It is, therefore, clear that though the occurrence had taken place around 9.30 or 9.40 p.m. and the distance mentioned in the FIR Ext.PB is 14 kms., it could have taken about half an hour to reach by any vehicle, but still no such report was lodged which was lodged at 3.05 a.m. and, therefore, there was a delay of around 5 hours in lodging the report, which has not been satisfactorily explained by the complainant. It is in evidence that immediately on admission, the deceased was declared dead and the prosecution ought to have examined the Medical Officer, who saw the deceased firstly on admission and given his opinion that the deceased was dead and he could have proved the exact time when the deceased was brought to the hospital. Even if the deceased had been brought to the hospital around 10.00 p.m. and the report was lodged with the police at 3.05 a.m., there is a delay of five hours in lodging the FIR, which has not been explained by the prosecution. On appraisal of the judgment of the learned trial Court, it is clear that the learned trial Court had considered the plea of alibi taken by the accused Arjun Singh who had also examined four witnesses to prove the same. The learned trial Court rather concluded that the accused Arjun Singh was not present in the village on the date of occurrence and after considering the evidence of defence witnesses, we are not in agreement with those findings, though it could have been held that the possibility that the accused Arjun Singh was not present at the relevant time at the place of occurrence cannot be ruled out and those findings could have been termed as more proper in view of the evidence on record. The accused had examined the Medical Practitioner Dr.Bachittar Singh as DW-3, who stated that he examined accused Arjun Singh on 9.5.1993 at about 8.00 a.m. having injury on the left side of his scalp and issued a certificate also from a diary, which proves that he may have suffered injuries, but keeping in view the fact that DW-3 examined the accused at 8.00 a.m. on the next day and the occurrence had taken place about 11 hours earlier, it could not have been concluded finally by the learned trial Court that the accused had proved the plea of alibi. The statements of DW-1 Dumanu Ram and DW-2 Gian Chand only establishes the fact that after some function, accused Arjun Singh had gone to his in-laws house but none from the in-laws house had been examined to prove his presence in their house at the time of occurrence. Therefore, we are not in full agreement with the said conclusion drawn by the learned trial Court. Further, a perusal of the judgment shows that the learned trial Court had also referred to the evidence of the prosecution witnesses as to whether the live cartridges were purchased for test firing and who had purchased and had referred to the contradictions in this regard. Therefore, the possibility cannot be ruled out that the opinion of the expert that the cartridge was fired from the gun in question may be regarding the test fire done by the expert. The remaining of the accused have been charge sheeted for possessing the gun and the gunshot was allegedly fired from the gun Ext.P-5, which allegedly belonged to Kartar Singh, though other gun belonged to Parshotam Lal, who had permitted respondent Mulkh Raj to use it, but it was never used and only one gun Ext.P-5 was used by Arjun Singh. The fifth accused Des Raj had been charged with abetment but there is no evidence since he was not present at the spot nor he had allowed his gun to be used by two of the respondents. From the above discussion, it is clear that keeping in view the contradictions in the prosecution case and the fact that the presence of the two eye witnesses was allegedly sought to be shown as per the evidence to make out a case and in view of the contradictions and infirmities in the prosecution case, including the delay in lodging the FIR, the final findings recorded by the learned trial Court holding that the prosecution has failed to prove their case beyond any reasonable doubt cannot be termed as perverse calling for an interference by this Court. In view of the above discussion, we hold that there is no merit in the appeal filed by the appellant, which is dismissed accordingly. The bail bonds furnished by the respondents shall stand discharged. (Deepak Gupta), Judge. April 27, 2009. (V.K. Ahuja), (TILAK) Judge