IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 496/2005 Date of decision: 4.7.2008 Dinesh Kumar ….Appellant Versus State of HP …Respondent. Coram The Hon’ble Mr. R.B. Misra, Judge. The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Petitioner: Mr. K.S. Banyal, Advocate. For the Respondent: Mr. P.K.Sharma, Addl. Advocate General Per Surjit Singh, J. (Oral) Appellant has assailed the judgment of Sessions court, whereby he has been convicted of an offence under section 304-A (second part) IPC and sentenced to undergo rigorous imprisonment for 10 years and to pay fine of Rs. 10,000/-, in default of payment of fine, to undergo simple imprisonment for a further period of two years. 2. Prosecution version, as it emerges from the record, may be summed up thus. Deceased Lokesh Sharma was the son of a 1 Whether the reporters of the local papers may be allowed to see the Judgment? brother of the mother of the appellant. Name of the father of deceased is Rishi Ram. Lokesh Sharma went to the place of the mother of the appellant on 22nd May, 2002. He allegedly consumed liquor in the company of the appellant, appellant’s brother Ashwani Kumar, who was a co-accused with him before the trial court, and two drivers named Jagdish and Raj Kumar. While consuming liquor, they happened to have a quarrel over accounting of income from the operation of a bus, which appellant owned. Lokesh Sharma, whose father had stood guarantor for the repayment of loan, taken for the purchase of bus, asked for accounting of the income of the bus. In the meanwhile, mother of the appellant, who is a sister of the father of the deceased, came there. She tried to pacify the appellant as also Lokesh Sharma. Enraged by the intervention of his mother, appellant allegedly slapped his mother. Deceased Lokesh Kumar objected to the slapping of his mother by the appellant, because of her being a sister of his father. Appellant then turned more furious. He tried to assault the deceased, but was over powered by the above named two drivers and his brother Ashwani Kumar. He was taken to a room and confined there. The deceased accompanied by Ashwani Kumar and the above named two drivers then went to the verandah of PW-6, Shakuntala Devi where he was supposed to have slept that night. When he was preparing his bedding, appellant went there with a screw driver and hit the deceased on his head (right side occipital region), as a result of which he fell unconscious. He was taken to a doctor and from there to Zonal Hospital, Una, where he was declared brought dead. Police was informed by a doctor of Zonal Hospital, Una, telephonically. PW-9, Head constable, Mehar Singh, attended the telephonic call and after making entry in the daily diary went to the hospital where he recorded the statement of Ashwani Kumar, who was a co-accused with the appellant. The latter, per his statement Ext PW-9/A, informed that the deceased had fallen from the roof of the bus where he was sleeping. 3. Next day, PW-8, Rishi Raj, father of the deceased, went to the police station and lodged FIR, Ext PW-8/A. He reported to the police that on getting the news of the death of his son, when he came to his village and saw the dead body, he felt that the story regarding fall of his son, from the roof of the bus could not be correct, as there was only one injury on the head of the deceased and, therefore, he persuaded Ashwani Kumar, a co-accused of the appellant, to come out with truth and said Ashwani Kumar told that on the night of 22nd May, 2002, he, the appellant, the deceased and two drivers consumed liquor and while taking liquor the appellant and the deceased quarreled over the issue of accounting of income from the bus and when Kailasho Devi, mother of the appellant tried to intervene, she was slapped by the appellant which was objected to by the deceased, on which the appellant became furious and tried to assault the deceased. He further reported that said Ashwani Kumar told him that the appellant was then confined to a room and he accompanied by the deceased and two drivers went to the verandah of Shakuntala Devi, (PW-6) and when the deceased was spreading bed sheet to cover his bedding, appellant came there with a screw driver and hit the deceased on his head, as a result of which the deceased fell unconscious. 4. Police then started investigating the case. It recovered bed sheet spread on a cot from the verandah of Shakuntala Devi, PW-6. It also lifted a portion of blood stained earth from the floor of the verandah of said Shakuntala Devi. Appellant was taken into custody. He made a disclosure statement, leading to the recovery of screw driver Ext P-1. Inquest was conducted. Postmortem examination of the deadbody was carried out by Dr. Nikhil Sharma, PW-1. Doctor noticed one contused lacerated wound and one injury on each of the two big toes of his feet. 5. Trial court charged the appellant with offence, under section 302 IPC. His brother Ashwani Kumar was charged with offence, under section 201 IPC. Both of them pleaded not guilty and were therefore, put on trial. 6. Prosecution examined 14 witnesses . Testimony of only five of those witnesses, is relevant . They are PW-6 Shakuntala Devi, PW-7 Manoj Kumar son of Shakuntala Devi, PW-8 Rishi Ram, father of the deceased, PW-11 Vijay Kumar, Pradhan of the Panchayat and P-12 Raj Kumar, one of the two drivers who allegedly witnessed the occurrence. 7. According to the prosecution , PW-6 Shakuntala Devi and her son PW-7 Manoj Kumar reached the spot immediately on hearing commotion and they saw the appellant, with screwdriver in his hand. They also saw Ashwani Kumar, co-accused of the appellant, driver Raj Kumar PW-12 and Jagdish, another driver employed by the appellant. She stated that the deceased who was lying in her verandah was lifted by Ashwani Kumar and the two drivers and placed on the cot, which was covered with a blanket and a bed sheet and thereafter he was taken by a scooter, to a doctor and then to Zonal Hospital at Una. In the cross examination she stated that the appellant was not initially there, when she and her son Manoj Kumar came to the verandah, on hearing commotion and he came 3-4 minutes later with a screw driver in his hand. 8. After she was cross examined by the defence, prosecution sought permission to cross examine her. She was permitted to be cross examined by the prosecution. Suggestion was put to her that she had made false statement that the appellant came to the spot 3-4 minutes later. She denied suggestion. It was also suggested to her that she had made false statement under threat from the accused, which suggestion she denied, even though she stated that she had received a threat on telephone because of which she was frightened. 9. Her son, PW-7 Manoj Kumar, however, did not make any mention of the alleged telephonic threat, as testified by his mother. He, however, stated that the appellant was already there with a screwdriver, when he and his mother reached the verandah and that the deceased was lying unconscious with head injury. 10. PW-12, Raj Kumar, who according to the prosecution was an eye witness, did not support the prosecution story. He was cross examined by the prosecution with the leave of the court. Even in his cross examination by the learned PP, he did not say anything favourable to the prosecution. PW-11, Vijay Kumar, the Pradhan of the Panchayat, in whose presence the appellant allegedly made disclosure statement leading to the discovery of the screwdriver, denied that any disclosure statement was made by the appellant or screwdriver was recovered at his instance. He too was cross examined by the prosecution but nothing was stated by him during the course of such cross examination, indicative of the involvement of appellant in the commission of crime. 11. PW-8, Rishi Ram, father of the deceased, no doubt testified that Ashwani Kumar had told him on 24th May, 2002, after a lot of persuasion by him, that appellant while drunk gave a blow of screwdriver on the head of the deceased, as reported vide FIR PW- 8/A, yet the attending circumstances of the case do not substantiate the story, allegedly narrated to him by Ashwani Kumar. Also, his testimony is nothing but hearsay and, therefore, does not amount to evidence within the meaning of Evidence Act. 12. We have noticed that the attending circumstances do not substantiate the version allegedly given to PW-8, Rishi Ram by Ashwani Kumar, a co accused of the appellant. The reasons are that the dead body was found in the verandah away from the cot., whereas the storey, allegedly narrated by Ashwani Kumar to PW-8, is that the deceased was hit with a screwdriver, when he was spreading bed sheet on the cot. Further photographs Ext PW-3/A -1 to 10 suggest that the bed sheet on the cot had already been spread and Shakuntala Devi, PW-6 and her son Manoj Kumar, PW-7 do not say that the bed sheet was not spread on the cot, rather it appears from their testimony that it was already spread, because they have stated that Ashwani Kumar and the two drivers lifted the deceased from the floor of her verandah and laid him on the cot and the bed sheet and the blanket forming the bedding, spread on the cot, were found stained with blood which fact again suggests that the bed sheet had already been spread. 13. We also find that even though the earliest version given to the police was that the deceased had sustained injury, as a result of fall from the roof of the bus, which version is alleged to be false, yet no evidence had been adduced by the prosecution to show that the same was untrue. Evidence could have been collected by inspecting the surroundings of the bus for the purpose of noticing whether any blood was spread around the bus or not, but no such effort appears to have been made, because nobody testified to this effect. 14. Testimony of PW-1 Dr. Nikhil Sharma, who conducted the postmortem, also probabilizes the statement, which was given to the police by Ashwani Kumar, vide statement Ext PW-9/A. Doctor found a contused lacerated wound on the right side of occipital region, as per postmortem report Ext PW-1/A. While in the witness box, doctor slightly changed his statement and stated that the injury was a punctured wound. This statement cannot be accepted for two reasons First in the postmortem report, he recorded the injury in the nature of a contused lacerated wound and not as punctured wound and secondly in the cross examination by the defence, he admitted that there was no hole in the bone at the site of the head injury, meaning thereby that the hole could have been only skin deep. Even with regard to the punctured wound on the skin, he admitted that he did not do any probing to find out its depth. Not only this, he admitted that the injury could have been sustained as a result of fall on a piercing hard object. It has come in the testimony of PW-6 Shakuntala Devi and PW-7 Manoj Kumar that the bus used to be parked adjacent to their house and that some bricks and other left out building material was lying scattered near their house. 15 In view of the above stated position, we are of the considered view that the case of the prosecution does not stand established against the appellant beyond reasonable doubt. Consequently appeal is accepted. Judgment of the trial court, convicting and sentencing the appellant, as aforesaid, is set aside and the appellant is acquitted . He being in jail, serving out the sentence awarded by the trial court, is ordered to be set at liberty forthwith, in case his detention is not required in any other case. ( R.B. Misra ), J. ( Surjit Singh ), J. 4th July, 2008 (sl)