IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.707 of 1996. Date of Decision: 24th May, 2010. _______________________________________________________ State of Himachal Pradesh ….Appellant. Versus Prem Chand and others ….Respondents. Coram Hon’ble Mr. Justice R.B. Misra, J. Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? For the appellant : Mr. Rajinder Dogra, Additional Advocate General and Mr. Anil Jaswal, Deputy Advocate General. For the respondents: Mr. N.K. Thakur and Mr. Sunil Thakur, Advocates. ____________________________________________________ Per SURINDER SINGH, J (Oral). State has challenged the acquittal of the respondents for the offences punishable under Sections 302 and 323 read with Section 34 of the Indian Penal Code allegedly for committing the murder of Jagdev Singh by forcible ingestion of poison in his mouth and also for causing simple hurt. 2. The prosecution story as emerges from its evidence can be stated thus. The deceased was an unmarried son, aged about 22 years, of one PW-1Jit Kaur Whether reporters of the Local papers are allowed to see the judgment? - 2 - and PW-8 Banta Singh. He was engaged the private work of electric fittings. 3. On 5th February, 1995 at about 8.00 p.m., respondent Prem Chand alongwith his wife visited the house of Jit Kaur aforesaid to enquire about Jagdev Singh and informed her to ask him to correct electric fault in their house as he had earlier done the electric fittings in their house. Around 9.00 p.m. Jagdev Singh (deceased) came to his house and the aforesaid information was passed on to him. After sometime Prem Lata visited the house of Jit Kaur and informed her that Jagdev Singh was being roughed-up in the house of Prem Chand. Jit Kaur went to the house of Prem Chand and noticed that her son Jagdev Singh had been thrown on the ground and respondents were giving beatings to him. Jit Kaur pleaded to pardon him and to leave him, but the respondents in turn are alleged to have threatened her to pour kerosene oil and put her on fire. Jagdev Singh became unconscious and the respondents directed Jit Kaur to take him away, but she told to take him to the hospital as she being lady and alone in the house. In the meantime, PW-2 Jaswant Singh and some labourers came there. Respondent Kuldip and Ramesh took her son to private clinic and she was accompanied by Satnam Singh alias Totu. PW-9 Kewal Krishan, Medical Practitioner - 3 - at Mehatpur expressed his inability to treat him. Thereafter he was taken to Government hospital, where he was attended upon by PW-4 Dr. A.K. Sharma. He conducted his stomach-wash and sent it for the chemical examination. He also issued Medico Legal Certificate Ext.PD and PW-15 Head -Constable Sansar Chand arrived there from Police Post City, Una and moved an application Ext.PC to the said Doctor for his opinion whether he was fit to make the statement, but around 11.57 p.m. Jagdev Singh breathed his last. 4. Thereafter said Head Constable told Jit Kaur to make the statement but she did not to do so. Head Constable Sansar Chand informed the Police Post, Mehatpur as the incident fell within the jurisdiction of that Police Post and recorded Rapat Ext.PL. 5. PW-16 Head Constable Surjit Singh, Investigating Officer posted in Mehatpur Police Post, on receiving telephonic message around 11.30 p.m. from Head Constable Sansar Chand, went to hospital and deputed two Constables to guard the dead body. He also asked PW-1 Jit Kaur to make the statement, again she was not ready to make any statement. On this, he informed PW-18 SI/SHO Garib Dass telephonically that some persons were obstructing in the investigation of the case. Rapat Ext.PK was entered and PW-18 SHO Garib - 4 - Dass went to District hospital. He reconciled the matter and recorded the statement Ext.PA of Jit Kaur under Section 154 of the Code of Criminal Procedure, which was thumb marked, on the basis of which FIR Ext.PJ was formally recorded. 6. PW-18 SHO Garib Dass completed the inquest report and requested for the autopsy to the Medical Officer. 7. PW-5 Dr. R.S. Dhadwal and PW-6 Dr. H.R. Sharma conducted the post-mortem and handed over the post-mortem report Ext.PF to the Investigating Officer. In the opinion of the Doctors the death of Jagdev Singh was due to ingestion of aluminum phosphate an insecticide. Viscera was sent for the forensic examination and opinion aforesaid was confirmed. 8. Site map was prepared by the police. House of Prem Chand was also got searched. Daughter of respondent Prem Chand produced her photograph to the Investigating Officer, which was taken into possession vide memo Ext.PG. It is alleged that the motive of committing the aforesaid crime was that the said photograph of Sunita was kept by the deceased, which was being demanded back by the respondents, his mother Jit Kaur had reprimanded him that he had humiliated their family. - 5 - 9. Police recorded the statements of the witnesses under Section 161 of the Code of Criminal Procedure and after completing investigation, Challan was presented against the respondents under the aforesaid Sections. During trial they denied the allegations aforesaid and alleged their false implication. According to them, deceased Jagdev had taken the photograph of Sunita and he had humiliated their family and they would get him thrashed from his father. On this, he committed suicide by consuming poison. Thereafter they took him to the hospital for treatment. 10. When called upon to enter their defence, respondents examined DW-1 Dr. Mohan Lal. 11. At the end of trial, respondents were acquitted. State has assailed their acquittal in this appeal. We have heard learned counsel for the parties and have re-appraised the evidence on record. 12. To substantiate the case of the prosecution, PW1 Jeet Kaur stated that when she went to the house of respondent Prem Chand, she found that her son was thrown on the ground by respondents. Satnam @ Totu had caught Kala from his head whereas Ramesh and Rakesh (not an accused) had caught hold of him from hands, legs and arms. It is not understood to whom out of respondents, she was referring to as Rakesh. She further - 6 - stated that respondent Prem Chand was putting some medicine in the mouth of her son and respondent Kuldip Kumar wad administering water. She further stated that she pleaded to leave her son and then respondent proclaimed that she would also be finished by pouring kerosene oil. Thereafter her son became unconscious. She stated that when she went to the house of respondent Prem Chand along with deceased accused were present on the spot. In cross-examination she denied that photograph of Sunita was kept by the deceased. She also denied that her son Jagdev admitted having taken the photographs of Sunita daughter of Prem Chand whereas in the next breath she stated that respondents were giving beatings to her son on the plea that he had taken her photographs to which Jagdev denied. She also stated that said photograph of Sunita was recovered on search of the house of Sunita on 6.2.1995 by the police. Whereas the case of the prosecution is that photograph was produced by Sunita herself, which led to a total confusion in the case. She was also confronted with the statement Ext. PA wherein it was not found recorded that wife of Tarsem had come to convey her about the beatings given to her son by the respondents. Later stated that name of his wife was wrongly mentioned because she was under mental stress. - 7 - Pertinently in her statement Ext. PA name of Rajinder and Satnam @ Totu were also not found mentioned and no role has been assigned to them. With respect to the role allegedly played by Ramesh and one Rakesh she was also confronted in her statement Ext. PA which was also not mentioned therein except the name of respondent Prem Chand, who was stated to have been administering some medicine to the deceased. She also did not refer in her statement Ext. PA that she being a lady told respondent to take her son for treatment. But, admitted that Prem Chand had accompanied her to the Hospital alongwith one Raj Kumar. Surprisingly, many persons of the vicinity gathered there in the house of Prem Chand but she only chose respondents to take the deceased to the Hospital. 13. The defence as put to her was denied. She also admitted having taken her by the respondents on the Scooter to the Hospital when her son was removed for treatment. She denied that no occurrence took place in the house of Prem Chand. She stated that head constable was present in the Hospital, but she did not make any complaint against the respondents to him. She also admitted that during investigation, her house and house of the respondents were searched by the Police. - 8 - She did not know that the police had recovered three tablets of insecticide kept in a tube from her house. 14. PW2 Jaswant Singh stated that he had heard noise around 9.30 p.m. from the house of respondent Prem Chand. He saw respondent Prem Chand giving slaps to Jagdev along with four other persons. He also stated that he could not make out if Jagdev was standing, sitting or lying on the ground nor he could hear the talk going on between them as nothing else was visible inside and also what each of the person present were doing. He heard from the family members of Prem Chand that they were demanding some photograph. He admitted that mother of Jagdev had stated that he had disrespected them and photograph should be returned by her son. He made an indifferent revelation that he had seen Jagdev and his mother going from the house of Prem Chand towards their house while the respondents were standing out side. Which means that Jagdev had left the house of Prem Chand when he was alive and was in the company of his mother. 15. PW4 Dr. A.K. Sharma stated that deceased was brought with the history of ingestion on 5.2.1995 4/5 poisons tablets of alphos, used for preservation of wheat. He was in semi conscious condition and smell of garlic was coming from his mouth. Clothes were soiled with - 9 - vomitus. Stomach wash was done. He was diagnosed the ingestion of poison. He issued Medico legal certificate Ext. PD. Deceased died on 5.2.1995 at 11.57 p.m. He further stated in cross examination that PW1 mother of the deceased was accompanying the patient. He was found unfit to make the statement. He further explained that by ingestion he means that patient brought to him had taken the tablets, which history was furnished by his mother. He did not find any external injury on the deceased. 16. PW5 Dr. R.S. Dadwal along with Dr. H.R. Sharma conducted the postmortem of the deceased. In their opinion, the cause of death was asphyxia. Time of death as per hospital record was 24 hours between death and postmortem. He stated that the injury which was found could be caused possibly by a fall. He also stated that in case of forcible administration of poison, there would be corresponding injuries around and within the mouth which were not found in this case. 17. On the critical examination of the aforesaid material witnesses of the prosecution to prove the case against the respondents, We do not find any substance or truthfulness in the statement of the mother of the deceased. Further no external injury was found on account of the alleged fisticuffing of the deceased by - 10 - the respondents; immediately after the alleged incident PW15 H.C. Sansar Chand reached the spot. Jeet Kaur also did not make any complaint against the respondents to him. 18. PW16 H. C. Surjit also stated that the mother of the deceased neither made any statement nor was ready to make any statement. He also stated that vide Ext. DA jeet kaur had refused to make the statement. Later PW18 Inspector Garib Dass is alleged to have recorded the statsement Ext. PA. He had visited the house of the deceased. Many people had gathered there. Thus, he could not search the house of deceased. But when confronted with the case diary, this fact did not find mention therein. The documents Ext. DA and Ext. DC were admittedly prepared by him. Ext. DA is the statement of HC Surjit Singh recorded under Section 161 of the Code of Criminal Procedure wherein mother of the deceased had refused to make any statement to the said witness. Ext. DC is the site plan prepared by him with respect to the house of Banta Singh father of deceased, which shows that there was a box lying in the corner of the room containing some electrical items and also having tablets of alphos. However, this fact goes contrary to the narration of the Investigating Officer that he did not search the house of Banta Singh. It is not - 11 - understood why these material facts were suppressed by him and also other witnesses. The original of Ext. DA and DC are not on the case file, which admittedly were prepared by PW Garib Dass. It means either the investigation was unfair or a lopsided view was projected by the Investigating Officer under some pressure to which he could not resist. 19. On the analysis of the aforesaid evidence, it is apparent that initially there was no grouse or complaint raised by the mother of the deceased with respect to the death of her son and the recovery of alphos from the house of the father of the deceased along with electrical items shows that deceased was already having these tablets in his possession and if the case of the prosecution is examined in the light of the medical evidence it does not show that the deceased was administered poison forcibly. Had it been so, there could have been injuries in and around the mouth which was not there. This fact was also corroborated by Dr. Mohan Lal (DW1) where Jagdev was taken initially for his treatment and he testified that PW Jeet Kaur was also accompanying respondents when deceased was brought to his clinic and she had informed him that deceased had taken the tablets used for wheat preservation. At that time, Jagdev was conscious and - 12 - came walking to him, as also stated by PW2 Jaswant Singh. Further, when he (DW1) asked from Jagdev he also admitted this fact. The defence taken by the respondents stands probablised. Certainly, prosecution could not prove its case beyond reasonable doubt. Learned trial Court rightly acquitted the respondents and there are no reasons for any interference with it as these findings are borne out from the evidence on record. As such appeal is without any merit, hence dismissed. 20. The respondents are discharged of their bail bonds entered upon by them at any stage during the proceedings of this case. (R.B. Misra), J. May 24, 2010 (Surinder Singh), J (rc/cm)