IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 50 of 1996 Date of decision: 30.3.2010 State of H.P. …. Appellant. Vs. Subhash Chand and others ... Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr. Justice Sanjay Karol, J. Whether approved for reporting?1. No. For the appellant-State: Mr.Rajesh Mandhotra, Dy. Advocate General For the respondents No.1 to 4: Ms. Seema Sood, Advocate. Per Deepak Gupta, J.(oral) This appeal by the State is directed against the judgement dated 16.11.1994 of the learned Sessions Judge, Kangra at Dharamshala, in Sessions trial No. 12-G/94 whereby he acquitted the accused of having committed offence punishable under Section 302 read with Section 34 of the Indian Penal Code. Briefly stated the facts of the case are that Shri Chuhru Ram had organised a function at his house on 3.2.1992. This function was organized to celebrate the retirement of his brother, Shri Gian Chand, from the Indian army. All the villagers and many other persons had been invited. The admitted facts are that deceased Devinder Kumar, who was working as a peon in the H.P.State Electricity Board at Dehra, was also invited to this function. It is not disputed that the deceased after taking his meals left the house of Shri Chuhru Ram at about 8.00 p.m. 1 Whether the reporters of the local papers may be allowed to see the Judgment. Yes. 2 About 5-10 minutes later PW-3 Yog Raj alongwith 5-6 other persons also left the house of Chuhru Ram, after they had taken their meals. When they reached the point on the road known as Khabli Dosarka they saw one person lying injured on the road at a curve. Since it was dark they could not identify the said person. Then PW-3 Yog Raj alongwith Tulsi Ram went to his quarter and brought a torch. In the torch light they saw that the injured person was Devinder Kumar. Thereafter Yog Raj and the other person lifted the deceased and made him lie on a cot in a shop near the road. The deceased could not talk or make any gesture. These persons knew that Dr. Tek chand, who was also the Pradhan of Gram Panchayat Khabli Dosarka, had also come to the house of PW-4 Chuhru Ram. Therefore, this doctor was called to give medical aid to the injured persons. Dr. Tek Chand came to the spot alongwith accused Subhash Chand. After examination Dr. Tek Chand advised that the injured should be taken immediately to the hospital. Subhash Chand accused was then sent to bring his tractor to transport the injured to the hospital but in the meantime a jeep belonging to the HPSEB came from Kangra side. The same was got stopped and the injured person was put in the jeep and taken to the hospital at Dehra. On the way the SDO Dehra was also called for from his residence. These persons alongwith the injured reached the hospital at 9.30 p.m. The doctor started giving medical aid to the injured but unfortunately Devinder Kumar expired at 9.40 3 p.m. The doctor sent a telephonic information to the police station that an injured person had been brought to the hospital. This telephonic information was recorded in Daily Diary as Ext.PH. Thereafter, PW-9 Investigating Officer Karan Singh alongwith other officials went to the hospital but the deceased had already died. The body of the deceased was sent for post mortem examination to the zonal hospital Dharamshala and investigation was done. During the course of investigation the Investigating Officer found that the deceased had illicit relations with one Sunita Devi, daughter of accused Hari Ram and wife of accused Jagdish. Accused Subhash Chand and Joginder Singh are the brothers of Sunita Devi and accused Vijay Kumar belongs to their village. The prosecution case is that because of illicit relations between the deceased and Sunita these five persons murdered Devinder Kumar. The accused were charged with having committed the offence aforesaid. After trial they have been acquitted. Hence the present appeal. The prosecution version as set out in the complaint and the F.I.R has not been supported by any of the prosecution witnesses. PW-2 Dr.Shashi Mahajan, who conducted the postmortem, observed a number of injures on the person of the deceased but out of these injures she found that only three injuries could have caused the death of the deceased. It would be pertinent to mention that in cross-examination a suggestion 4 was put to her that these injuries could be caused in a motor vehicle accident. She stated that it was difficult for her to say that all these injuries could be caused in a motor vehicle accident, but went on to say that if a person is involved in a motor vehicle accident and during this strikes against a sharp edge with force such injuries could be sustained. PW-3 Yog Raj has only talked about seeing Devinder Kumar at the house of PW-4 Chuhru Ram. When they were going back after dinner they saw the injured Devinder Kumar at about 8.30-9.00 p.m. In cross-examination he admits that when he and the other employees of his department, such as, Tulsi Ram, Hardial Singh, Lal Singh left the house of PW-4 after taking meals all the accused persons and the Pradhan Dr. Tek Chand were still in the house of PW-4 Chuhru Ram. According to him, they had reached the place where the deceased was lying on the road within 5 to 7 minutes of their leaving the house of Chuhru Ram. PW-4 Chuhru Ram did not support the prosecution case. He stated that the deceased left his house at about 8.00 p.m. He denied that Sunita had any illicit relations with the deceased or that she had eloped with a friend of the deceased. He was confronted with his statement to this effect recorded under Section 161 Cr.P.C. but denied having been made such a statement. He also stated that at the time when the deceased left the house after taking dinner the accused persons and 5 Pradhan Dr. Tek Chand, etc had not left his house. Thereafter, PW-3 Yog Raj and Tulsi Ram left the house first and at about 8.30-8.40 p.m. Tulsi Ram returned to the house and asked for Pradhan Dr. Tek Chand and informed that the deceased was found injured on the road at Khabli Dosarka. PW-5 Onkar Singh also turned hostile and denied that he had ever stated to the police that there were illicit relations between Sunita and the deceased. These are the only witnesses concerned with the occurrence. The prosecution has failed to establish any motive, nor has even remotely linked the death of the deceased with any of the accused. There is no evidence, not even circumstantial to link the accused in any manner what-so-ever. In fact, from the evidence on record the possibility of the deceased having been injured in a motor vehicle accident cannot be ruled out. As per the evidence led by the prosecution deceased Devinder Kumar left the house of PW-4 Chuhru Ram at about 8.00 p.m. After about 15-20 minutes PW-3 Yog Raj alongwith Tulsi Ram and other employees of the HPSEB left the house of Chuhru Ram. At that time the accused were still in the house of Chuhru Ram. Within 5 to 7 minutes Yog Raj and his companion reached the spot where the deceased was lying injured and after some time Tulsi Ram went back to call Dr. Tek Chand and accused Subhash Chand was still in the house of Chuhru Ram. This totally disproves the prosecution version because this clearly 6 shows that the accused was still in the house of Chuhru Ram and had no chance or opportunity of murdering the deceased. In view of the above discussion, we find no merit in the appeal, which is accordingly dismissed. The bail bonds furnished by the accused are discharged. (Deepak Gupta) Judge. 30th March, 2010 (Sanjay Karol) ™ Judge.