IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 277 of 1997 Date of decision: 20.08.2010 ____________________________________________________________ The State of H.P. .....Appellant. Versus Bhag Singh & another .....Respondents. Coram The Hon'ble Mr. Justice R.B. Misra,J. The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? ____________________________________________________________ For the appellant: Mr. Rajinder Dogra, Additional Advocate General with Mr. Anil Jaswal, Deputy Advocate General. For the respondents: Mr. Rakesh Jaswal, Advocate. R.B. Misra, J (Oral). The present criminal appeal has come up for consideration after leave to appeal under Section 378(3) of the Code of Criminal Procedure has been granted in reference to the impugned judgment and order dated 06.01.1997, passed by the learned Additional Sessions Judge, Mandi, District Mandi, in Sessions Trial No. 9 of 1996, acquitting the alleged accused under Sections 302 and 460 of the Indian Penal Code in reference to FIR No. 232 of 1995. 2. Prosecution case in brief is that on 23.10.1995, Brij Lal lodged a report that on 20.10.1995, he alongwith his wife Sunita 1 Whether reporters of Local Papers may be allowed to see the judgment? ...2... Devi and Krishan Chand went to the marriage of the son of his maternal uncle in village Bharela and his brother Duni Chand alongwith his step mother and daughter of his elder brother were at home; while the wife of Duni Chand, with two children, was residing in her parents house; and on 23.10.1995, his uncle Banku Ram came and told that Bhagi and Naro entered their house on 21.10.1995 at 6:30 p.m. and gave 'danda' blows to Duni Chand, as a result of which Duni Chand died on the night intervening 22nd and 23rd October, 1995, and that about 3/4 days earlier also Duni Chand was threatened by Naro Devi accused and that there was a dispute of land between them, on this report FIR No. 232 of 1995 was recorded and investigation was carried out and on investigation, a case under Section 302 and 460 of the Indian Penal Code was found against the accused, who were challaned and the case was committed to the Sessions Court. 3. In order to prove its case prosecution examined as many as eighteen witnesses, whereas, accused-respondents through their statements under Section 313 Cr.P.C. denied the prosecution case. 4. On scrutiny of the prosecution witnesses, medical report, postmortem report and the material on record we notice that there is direct conflict between the oral and medical evidence. As per witnesses of the prosecution, there was blood oozing out from the head and nose of the deceased and there was legature mark, but as per doctor, no such blood and legature mark was found on the body of the deceased. Near the place of incident fifty ...3... houses were located in the village and as per Savitri Devi, PW-1, beatings were given to the deceased for about two hours. It cannot be believed that if beatings for such a long time were given to the deceased, no person from the village came and witnessed the incident. More so, no hue and cry was raised by the deceased. Such aspects makes the prosecution case doubtful. 5. On scrutiny of the prosecution witness, PW-5 Dr. Surinder Agnihotri, it appears that injuries were on the person of the deceased. Three eye-witnesses of the occurrence, namely, PW-1 Savitri Devi, PW-8 Kaulan Devi and PW-12 Raksha, being interested witnesses belong to the same family. PW-1 Savitri Devi in cross-examination has deposed that accused persons gave beatings continuously to the deceased for about two hours and came out of the room at about 8 p.m. After the accused left, she went and saw Duni Chand in an injured condition. PW-1 has also stated that there are 45-50 houses in their village and people reside in those houses, but, she has nowhere stated that she raised any hue and cry during such period of beating of two hours when the accused were giving beatings to Duni Chand. Any person from the adjoining houses did not come on the spot to rescue Duni Chand. So much so, even PW-8 Kaulan Devi and PW-12 Raksha Devi, another interested witnesses have stated that they never went to the room to rescue Duni Chand. Such conduct of PW-8 and PW-12 appears to be unnatural when step-son of Savitri Devi, namely, Duni Chand, was being given beatings in the room by two accused, as alleged by PW-8 and PW-12. It is natural and that if ...4... any person comes to know of such beatings, that person shall make hue and cry and more so when such person is interested in the victim (deceased). The deceased was the step-son, who was being beaten continuously for two hours by the accused persons. PW-1 has further deposed in cross-examination that Brij Lal etc. went to marriage on 20.10.1995 and Duni Chand was having injuries on 20.10.1995, when Brij Lal etc. went for marriage, which falsifies the case of the prosecution and benefit of the same must go to the accused. 6. Another improbability is that when PW-1 Savitri Devi went to Kunju Pardhan and told him that accused had given beatings to Duni Chand, he did not come to the spot and told her to arrange the persons to take Duni Chand to hospital, but said Kunju Pardhan has not been examined by the prosecution. Whether Savitri Devi went to him and narrated the incident regarding the occurrence. The incident took place on 21.10.1995 at 6 p.m., while FIR was lodged on 23.10.1995, after about two days and there were 40-50 houses in that village. In our considered vide, the delay has not been properly explained. In view of the statement of the prosecution witnesses or by the Investigating Officer on this aspect also, the accused-respondents are entitled for the benefit of doubt. 7. On the basis of the scrutiny of the prosecution witnesses and the material on record, learned Sessions Judge has arrived at the finding that the prosecution has failed to prove its case beyond reasonable doubt. In our considered view also, ...5... keeping in view the discrepancies, contradictions and improbabilities, the prosecution has failed to bring home the guilt against the accused-respondents. There is no scope of interference in the judgment of the trial court and appeal being devoid of merit is dismissed. (R.B. Misra) Judge (V.K. Sharma) Judge 20th August, 2010 (virender)