HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No. : 214 of 1995 Reserved on: 10.4.2009 Decided on: 21.4.2009 State of Himachal Pradesh ……… Appellant. Versus Sudesh Kumar alias Ranjha ………Respondent. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the Appellant: Mr.R.M. Bisht, Mr.Rajesh Mandhotra, Deputy Advocate Generals and Mr.R.P. Singh, Assistant Advocate General. For the respondent: Mr.K.C. Rana, Senior Advocate, with Ms.Uma Manta, Advocate. Per V.K. Ahuja, J.: This is an appeal filed by the State of Himachal Pradesh under Section 378 of the Cr.P.C. against the judgment of the court of learned Additional Sessions Judge (I), Kangra at Dharamshala, dated 4.4.1994, vide which the respondent was acquitted of the charge framed against him under Section 302 of the Indian Penal Code. The prosecution story in brief is that on 25.12.1992 at 4.30 p.m., a report was lodged with the police by one Smt.Santosh Kumari that one Chhotu, son of the sister of her father-in-law, had come to their house from Mumbai for the last ___________________________________________ Whether reporters of local newspapers may be allowed to see the judgment? Yes. one month and was staying with them. It was stated that at about 11.00 a.m., the said Chhotu was going to Kullu and on way respondent Ranjha, living near her house, called him while he was crossing the path and when Chhotu stopped there, Ranjha gave a blow with a hammer in his hand on the head of Chhotu, who fell down and died at the spot. It was alleged in the said report that this occurrence was also witnessed by her daughter Indu Bala. On this report, a case was registered. The police went to the spot, prepared the inquest report and after post mortem examination of the deceased and on completion of the investigation, the challan was filed before the court of the learned Judicial Magistrate Ist Class, who committed the case to the court of the Sessions and then the case was assigned to the learned trial Court, who tried the respondent leading to his acquittal. We have heard the learned Deputy Advocate General for the appellant and the learned counsel for the respondent. The learned Deputy Advocate General appearing for the appellant has taken us through the evidence of two eye witnesses, namely, PW-2 Santosh Kumari and PW-3 Indu Bala, daughter of PW-2 Santosh Kumari, and submitted that the statements of both these witnesses, coupled with medical evidence, were sufficient to prove the guilt of the respondent and as such the findings to the contrary holding that the prosecution case has not been proved beyond any reasonable doubt are perverse and the same are liable to be set aside. The learned counsel for the respondent had supported the impugned judgment for the reasons recorded therein. On appraisal of the record of the case, it is clear that the prosecution had examined 8 witnesses to substantiate their case. The statement of the complainant and her daughter, who are the eye witnesses to the occurrence, have to be scrutinized with caution whether they can be relied upon so as to hold that the respondent was wrongly acquitted of the charge framed against him. There is another fact which has to be taken note of that the accused in his statement under Section 313 of the Cr.P.C. had taken the plea that he had gone to the bazar and when he returned, he found his cow shed on fire. He also took up the plea that the deceased was lying in his courtyard and he learnt that the deceased had set his cow shed on fire and then tried to set his house on fire and under the influence of liquor, he fell from the roof and sustained injuries. However, no defence evidence was led by the accused. Coming to the testimony of the eye witnesses, PW-2 Santosh Kumari has reiterated the assertions made in the report lodged by her with the police that the deceased left their house and was called by the respondent. The deceased went to the courtyard of the house of the accused where the accused picked up a hammer and gave a blow on his head, who fell down. She stated that she was cleaning utensils in her house and her daughter Indu Bala was helping her at that time. She stated that she saw the incident and her daughter also saw, and she went to the courtyard of the house of the accused. She further stated that thereafter, she went to the house of the Pradhan, Gram Panchayat and her daughter went towards the field and she informed the Pradhan that the respondent had killed Swapan Narang by inflicting hammer blow. PW-3 Indu Bala had also stated similarly and both of them have stated that only one blow with hammer was given by the respondent on the head of the deceased, which fact was also mentioned in the report lodged with the police Ext.PC. However, a perusal of the MLC proved from the testimony of PW-1 Dr.S.K. Sood, who conducted the post mortem on the body of the deceased and gave his report Ext.PA, shows that there were abrasions of 2” x 1”, contusion on right leg and penetrating wounds on each side of the thigh were also found on the person of the deceased. According to the opinion given by PW-1 Dr.S.K. Sood, injury on thigh was not possible with the blow of hammer Ext.P-5, nor they were possible due to fall on hard surface because the injury was penetrating 3” deep. He, however, admitted that such injury was possible by fall on hard surface having protruding object. It is, therefore, clear and rightly it was observed by the learned trial Court that the presence of these injuries could not be explained by the prosecution. Therefore, it was rightly concluded that there is some inconsistency in the ocular version as well as medical evidence and this clearly shows that the witnesses have not been very clear in regard to the manner in which the occurrence took place. It is true that some inconsistency is not sufficient to hold that it is a good ground to discard the testimony of eye witnesses, but the statements of the eye witnesses have to be taken with more care and caution in view of the inconsistencies. Therefore, it was rightly observed that the story of the prosecution is highly improbable and it cannot be concluded that the occurrence took place in the manner as suggested by the prosecution. However, a further perusal of the record shows that the eye witnesses were allowed to be further cross examined by the learned defence counsel when the they were recalled and in such cross examination, they changed their stand. PW-2 Santosh Kumari has denied having stated to the police in her statement that Swapan Narang, while proceeding to Kullu, had talked with her brother-in-law in his courtyard and she was confronted with her statement Ext.DB where it was so recorded. She further stated that she did not leave her courtyard while cleaning utensils and saw therefrom the deceased and the accused talking to each other. She admitted that the courtyard of the house of the accused was at a distance of about 8’ from the field where she was standing. She has now stated that she was standing in her field located at the upper side of the courtyard of the house of the accused. She denied having stated in her earlier statement that the accused pushed the deceased who fell down and thereafter the hammer blow was given by the accused to the deceased, which was so stated by her in her earlier statement given to the police with which she was confronted. She now stated that the accused inflicted various hammer blows upon the person of the deceased Swapan Narang. She raised noise and Dila wife of Chimna came to the spot. She admitted that she saw the burnt cow shed of the accused when the police came to the spot but did not notice it earlier since she was puzzled. She stated that her both statements, i.e. earlier statement given by her in the court that after pushing no blows were given and today’s statement that after pushing hammer blows were given, are correct. She denied that the house of the accused was not visible from their house. She also denied the suggestion that the deceased fell down while setting the cow shed of the accused on fire and while attempting to set the house on fire, the deceased died due to fall. PW-3 Indu Bala was also recalled and now she also changed her stand and stated that 4-5 hammer blows were inflicted by the accused which were inflicted on the head and the legs of the deceased. She now came up with another plea that the mother of the accused came with a broom which was already burning and set the grass of the cow shed on fire with the help of the said burning broom. She was confronted with her statement Ext.DC wherein it was not so recorded. She now came up with the plea that when the accused pushed her and her mother, they raised noise, which fact was never stated by her mother PW- 2 Santosh Kumari when she appeared in the witness box. She then came up with the plea that she tried to save herself when the accused gave a hammer blow on her arm and thereafter, the accused pushed her besides the deceased. She stated that she did not get her injury medically examined, though, as per her version, it was given with a hammer and may have been a serious injury, if inflicted. She stated that in the inquest report Ext.DD, she had mentioned that many blows were inflicted by the accused upon the person of the deceased on his head and legs but she was confronted with the inquest report wherein a reference was made to only two blows on the head. She denied the suggestion that the deceased had taken liquor since morning and had set the cow shed on fire and while setting it on fire, he sustained injuries. It is clear from the above discussion that both the eye witnesses have given versions which are not according to the medical evidence and, therefore, their ocular version does not stand corroborated fully from medical evidence. It is also clear that both PW-2 Santosh Kumari and PW-3 Indu Bala had tried to change their earlier version and had come up with different pleas when subjected to further cross examination, which makes their statements not reliable. Thus, these improved versions were not accepted by the learned trial Court and rightly so. It was also observed that there was no hostility in between the deceased and the accused and it looks surprising that the respondent will call the deceased to his house and without there being any enmity, will immediately give a hammer blow on the head of the deceased leading to his death. Thus, there was no motive for the accused to have committed such a heinous crime. Though it is not necessary to prove motive, but if proved, it could have been used as corroborative evidence. However, the manner in which the occurrence took place and the respondent is stated to have inflicted the blow with hammer does not inspire confidence that this occurrence may have taken place in this manner. In the inquest report, it was mentioned that the deceased, while going to Kullu, had a talk with Tulo Raj, the brother-in-law of the complainant PW-2 Santosh Kumari, which was proved by the testimony of PW-7 Mohinder Singh, the Investigating Officer. This clearly shows that Tulo Raj was present in the house at the time of the incident and he has not been examined by the prosecution. His non-examination also casts a doubt about the prosecution version. PW-2 Santosh Kumari had stated that she failed to notice the cow shed burning but PW-3 Indu Bala admits that the cow shed was burnt on that day, which finds corroboration from the testimony of the Photographer and the photographs Ext.D-5 to Ext.D-8 of burnt cow shed proved on record. This clearly shows that some occurrence may have taken place which has not been proved by the prosecution and the possibility that the cow shed was burnt by the deceased or he sustained the injuries by fall cannot be ruled out, though the main injury has not been admitted to be possible by fall, as per the opinion given by PW-1 Dr.S.K. Sood, including the injury on the thigh, which was also not possible with the blow of hammer. A perusal of the report of the Chemical Analyst Ext.PB shows that on chemical analysis of the viscera of the deceased, presence of alcohol was found, which gives credence to the defence plea taken by the accused in his statement under Section 313 of the Cr.P.C. that the deceased was under the influence of liquor and may have sustained the injuries by fall. No other infirmity was pointed out or any conclusion was pointed out which was wrongly drawn by the learned trial Court while discussing the evidence led by the prosecution. Accordingly, we are of the opinion that the findings recorded by the learned trial Court that the prosecution has failed to prove their case cannot be termed as perverse calling for an interference by this Court. In view of the above discussion, we find no merit in the appeal filed by the appellant, which is dismissed accordingly. The bail bonds furnished by the respondent shall stand discharged. (Deepak Gupta), Judge. April 21, 2009. (V.K. Ahuja), (TILAK) Judge