IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.A. No. : 274 of 1997. Decided on: 19.8.2010. ___________________________________________________________ State of H.P. … Appellant. Versus Shyam Singh and others. … Respondents. ___________________________________________________________ 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. Rajinder Dogra, Addl. A.G.. For the respondent : Mr. H.K.S.Thakur, 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 24.1.1997, passed by the learned Sessions Judge, Kinnaur, H.P., in Sessions Trial No. 39-R/7 of 1995/93, acquitting the respondents-accused for the alleged offences, under Sections 302, 201 read with Section 34 IPC. 2. The prosecution case is that on 30.4.1992, one Kitabu Ram had gone to village fair at Chebri and had not returned home. Smt. Uttami Devi was informed by one Khushi Ram at about 2.30 p.m. on 1.5.1992 that Kitabu Ram is lying below the ‘Dhank’. She had immediately reached at the spot and on seeing the deceased, she became unconscious and 1 Whether reporters of the local papers may be allowed to see the judgment? 2 thereafter, she does not know what had happened. Many villagers also came at the spot and on 2.5.1992, accused Dikroo Ram had told to the people that the deceased died because of fall under the influence of liquor. Injury was also noticed on the head and scratches on the throat of the deceased. The dead body of the deceased was cremated as per custom of the illaqua. However, investigation was made and the case for the alleged offences under Sections 302 and 201 read with Section 34 IPC was made out against the respondents-accused. The case was committed for session trial. 3. In order to prove its case, the prosecution examined as many as 19 witnesses in support of its case, whereas through their statements under Section 313 Cr.P.C., the respondents-accused have denied the prosecution case. 4. PW1 Smt. Kumb Devi, PW2 Smt. Narma Devi and PW3 Bindi Ram have not supported the prosecution version. PW3 Bindi Ram, the elder brother of deceased, has stated that he was informed by Kanshi Ram about death of Kitabu Ram deceased and on inquiry Dikroo Ram told that the deceased had fallen down or somebody had killed him. 5. PW4 Shri Nuram Chand, President of Gram Panchayat, Durah has stated that Shyam Chand accused disclosed about the direction in which he had thrown the ‘Danda’ by which deceased was hit. PW5 Bir Singh has not supported the prosecution case. 3 6. PW6 HC Kanwar Singh, PW7 Constable Mast Ram, PW8 Constable Ganga Ram and PW9 Duni Chand in due discharge of their official duties have performed the job assigned to them. PW9 Duni Chand has stated that while coming back from ‘Mela’ and were sitting on the curve of the road, he had observed Bir Singh, Hira Devi, Kitabu Ram, Shyam Singh and Bhag Chand were going towards village Bathor, whereas, Bhag Chand, Shyam Singh and Kitabu Ram were under the influence of liquor and were talking loudly and pushing each other. In cross-examination, PW9 Duni chand has stated that he has seen from a distance of 10 meters that accused persons were under the influence of liquor. 7. PW10 Shri Jagat Ram, who was with Shri Duni Chand, has also stated that there were certain persons under the influence of liquor. Subsequently, he had named Hira Devi, Bir Singh, Shyam Singh, Bhag Chand and Kitabu Ram, who were talking loudly under the influence of liquor and similar version was stated in cross-examination. 8. PW11 Smt. Uttami Devi complainant in her statement under Section 154 Cr.P.C. has stated that her husband was not having good relations with his brother Dikroo Ram and his son. On the date of incident, she was called from her field by Khushi Ram and when she reached near the ‘Dogri’ of Dikroo, she had seen the dead body which was visible from the road. Shyam Singh and Hira Devi were present at that time and thereafter, the villagers also came 4 there. Shyam Singh accused told that the deceased died after falling from the ‘Dhank’. There were injuries on his head, neck and there was a clot on the throat of the deceased. There were blood stains on the clothes of the deceased, but the clothes were washed by the wife of Dikroo Ram. On the next day, the dead body was cremated. The clothes of the deceased were given to Pattu Luhar. PW11 reported the matter only when she came to know about the incident after making inquiry and police visited the spot. She has stated that her husband was consuming liquor and Shyam Singh told her that the deceased died due to fall. PW11 in cross-examination has stated that her husband had consumed liquor on the date of incident. She has also stated that she was also in the ‘Mela’. She has further stated in cross-examination that she had returned earlier because her children were at home. 9. PW12 Pinsu Ram while sitting outside the hotel of Ganga Ram had observed deceased Kitabu Ram, who came and asked for a Bidi from him. In cross-examination, he has stated that Kitabu Ram was in good condition when he met him. 10. PW13 Shri Bachitar Singh has stated that deceased was not having good relations with Dikroo Ram. Shyam Singh had extracted stone from the field of Kitabu Ram and the ‘Malwa’ remained there. Kitabu Ram asked Shyam Singh to remove the same on which Shyam Singh run after him to beat him. This incident was witnessed by him from his 5 verandah. In cross-examination, he has stated that accused and the deceased were living separately since the time of their father. Uttami Devi complainant was also knowing about the threats which accused Shyam Singh had given to deceased prior to the incident. No case was reported to the police about the threats. PW13 has denied that the deceased fell down under the influence of liquor. 11. PW14 Shri Kirpa Ram had seen the dead body and has stated that he noticed injuries on the dead body of the deceased. There was black clot on the throat of deceased who was killed by strangulation. 12. PW15 Pattu Ram, PW16 Kanshi Ram, PW17 Paras Ram, PW18 Sant Ram and PW19 Ravinder Prakash are of not much help to the prosecution. 13. After going through the prosecution case and material on record, we infer that prosecution case is based on circumstantial evidence. It has come in evidence in the statement of PW3 Bindi Ram that they reported the matter to the police after 2-3 days of the cremation and PW11 Uttami Devi complainant is silent about making of the statement recorded under Section 154 Cr.P.C, which creates doubt in the story of the prosecution. Majority of the prosecution witnesses have stated that the deceased had consumed liquor on the day of incident. The wife of deceased herself has stated that her husband on the date of incident had consumed liquor and the persons accompanying the deceased were 6 moving under influence of liquor and were pushing each other. However, no prosecution witness has come forward to say that anybody has seen any one inflicting any injury with weapon. Since the post mortem examination could not be conducted, the injuries could not be ascertained. It is also not apparent by which weapon the injury could have been inflicted. PW11 Uttami Devi, wife of the deceased, has also not supported the prosecution case. 14. Keeping in view the inconsistencies and contradictions in the evidence of the prosecution witnesses and material on record, learned Session Judge has rightly arrived at a conclusion that the prosecution has not been able to prove the case beyond any reasonable doubt. In our considered view, the prosecution has failed to bring home guilt to the accused. 15. In view of the aforesaid facts and circumstances, we are of the considered view that there is no scope for interfering with the impugned judgment of the trial court and accordingly, the present criminal appeal being devoid of any merit is dismissed. (R.B. Misra) Judge. (V.K. Sharma) Judge. August 19, 2010. (cr) 7