IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 4 of 2000 Date of decision: 17.09.2010 __________________________________________________________________ The State of H.P. .....Appellant. Versus Ashok Kumar @ Nibi & 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. For the respondents: Mr. Sandeep Pandey, Advocate, vice Mr. K.D. Sood, 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 04.08.1998, passed by learned Sessions Judge, Mandi, District Mandi, Himachal Pradesh, in Sessions Trial No. 22 of 1996, acquitting the alleged accused under Section 302 and 201 read with Section 34 of the Indian Penal Code. 2. The prosecution case is that one Devi Ram, resident 1 Whether reporters of Local Papers may be allowed to see the judgment? ...2... of Salphar Hatli in Tehsil Sarkaghat was tractor driver. He was employed with Shri Bansi Ram, Pradhan of Panchayat Derehan. On 06.03.1995, Devi Ram (deceased) came to the hotel of accused-respondent, Ashok Kumar at Bhambla, where he alongwith others took liquor and danced to the tune of music played on the tape recorder and had died on 06.03.1995. On the next morning his dead body was found in Seer Khad. The dead body was identified by his widow, Prem Devi (PW-2) and his brother Nika Ram (PW-3) and was sent for post-mortem examination by ASI Raghunath (PW-17). Dr. R.S. Jambal (PW-10) after conducting the post-mortem examination on 08.03.1995 found several injuries on the person of the deceased, consequent upon which Devi Ram (deceased) had succumbed to the injuries and was said to have died due to acute subdural haemorrhage and respiratory failure with other ante mortem injuries contributing to death. The FIR was lodged and after completion of the investigation the case was committed to the Sessions Court. 3. In order to prove its case, prosecution examined as many as nineteen witnesses, whereas, accused through his statement under Section 313 Cr.P.C. denied the prosecution case. 4. On scrutiny of the prosecution witnesses and the material on record, we notice that Suresh Chand (PW-1), Jai Singh and Devi Ram arrived at the hotel at about 8:15 p.m. and ...3... started taking liquor. After sometime Roshan Lal (PW-5) and Surender Pal (PW-11) also joined. All of them had liquor and danced to the tune played on the tape recorder. 5. Suresh Chand (PW-1) has stated that he came to the hotel of Ashok Kumar at Bhambla accompanied by Jai Singh at about 7 or 8 p.m. As per testimony of PW-1, when he left the hotel of Ashok Kumar, only Ashok Kumar and his servant Parkash Chand and Lekh Ram remained in the hotel. In cross- examination he has denied that when he left the hotel of Ashok Kumar, Devi Ram (deceased) remained sitting in the hotel. To the similar effect, is the evidence of Roshan Lal (PW-5). PW-5 Roshan Lal has stated that he had gone to Bhambla to get his clothes from a tailor, thereafter, he went to the hotel of Ashok Kumar, where he met his Mama, Surender Pal and took liquor with Jai singh, Suresh Kumar, Ashok Kumar and Devi Ram and participated in dancing, however, after he left the hotel, he was not aware as to where Devi Ram went thereafter. 6. PW-6 Lashkari Ram runs an Auto Workshop at Bhambla, who stated that he accompanied by Achhari Dutt visited the hotel of Ashok Kumar on that day at about 9 p.m. and noticed Roshan Lal, Suresh Kumar, Jai Singh and owner of Dimpi Boot House dancing in the hotel. PW-6 has further stated that he asked Ashok Kumar, owner of the hotel, to get the place cleared to enable them to take food. In cross-examination he did not indicate that Devi Ram (deceased) was insisting to take more ...4... liquor in the hotel and Ashok Kumar refused to offer him more liquor. 7. PW-9 Ramesh Chand did not support the prosecution case. He has stated that at about 10:30 or 11 in the night, he saw Laskari Ram and Ashok Kumar taking food in the hotel of Ashok Kumar and did not see Devi Ram (deceased), however, there is no evidence that he (deceased) remained in the hotel in the company of the accused-respondents. None of the prosecution witnesses have stated that Devi Ram (deceased) remained in the hotel of the accused-respondents and victim/deceased was insisting for more liquor and he was forcibly removed. 8. Recovery of 'Khoncha', Ex. P-4, said to have been used by the accused-respondents, through which injuries were inflected, was not recovered at the instance of accused- respondents. PW-3 Nika Ram has very categorically stated that neither khoncha was recovered by the police in his presence nor any statement of Ashok Kumar was recorded. 9. In a way, prosecution has failed to establish that khoncha, Ex. P-4, is the same weapon through which the accused-respondents have inflicted injuries on the person of the deceased. The prosecution story and the death of Devi Ram (deceased) are based on circumstantial evidence and last seen theory, whereas, none of the prosecution witnesses have stated that when they took liquor in the hotel of accused-respondent Ashok Kumar, at that time, Devi Ram (deceased) also remained ...5... in the hotel and had insisted to take more liquor and in an endeavour to push him out, he was killed. 10. Apparently, lack of motive is appearing. Prosecution could not indicate that there could be any bad motive on the part of the accused-respondents to kill the victim/deceased. In the present case, alcohol of 343.5 percent ml. was found in the viscera of the deceased, which according to Dr. R.S. Jamwal is very high level of alcohol. The report of the Chemical Examiner, Ex. PZ/1, records that 343.5 percent ml. of alcohol was found in the viscera. The possibility that the deceased might have fallen down in the drunken state of mind and received injuries on account of this fall, causing subdural haemorrhage, cannot be ruled out. PW-6 Lashkari Ram has also suggested that Devi Ram (deceased) was intoxicated and, therefore, fell down in the hotel. In his own words, “it is incorrect to suggest that Devi Ram was intoxicated and therefore, fell down in the hotel.” 11. The prosecution case is also based on the testimony of PW-18 Lekh Raj, domestic servant of accused-respondent Ashok Kumar, at the relevant time he was working in the hotel at Bhambla, when he was cleaning utensils outside the hotel, somebody had placed a dead body behind his back. He became perplexed and he does not know what happened thereafter, however, in cross-examination has stated that Devi Ram was drunken and unable to walk. In totality of the facts and circumstances, the prosecution has not been able to link the ...6... death of the victim/deceased with the acts or deeds of the accused and the cause of death having not been occurred due to injuries on the head of the deceased/victim. In these circumstances, learned Sessions Judge, Mandi, has rightly arrived at the conclusion that the prosecution has failed to prove its case beyond reasonable doubt. In our considered view also, the prosecution has failed to bring home the guilt against the accused-respondent and we do not find any scope of interference in the judgment of the trial court. Appeal being devoid of merit is dismissed. (R.B. Misra) Judge (V.K. Sharma) Judge 17th September, 2010 (virender)