IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.: 667/1996 and Cr. Appeal No.87/1997 Reserved on: 4.5.2010 Decided on: 14.5. 2010 _____________________________________________ 1. Cr. Appeal No. 667/1996 Dass Ram. …Appellant. Versus State of Himachal Pradesh. …Respondent. 2. Cr. Appeal No. 87/1997 State of Himachal Pradesh …Appellant Versus Dass Ram. …Respondent. _______________________________________________________ Coram: Hon’ble Mr. Justice Deepak Gupta, Judge. Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. 1. Cr. Appeal No.; 667/1996 For the Appellant : Mr. Ashwani K. Sharma. Advocate. For the Respondent: Mr. Rajesh Mandhotra, Dy. Advocate General. 2. Cr. Appeal No.; 87/1997 For the Appellant : Mr. Rajesh Mandhotra, Dy. Advocate General. For the Respondent: Mr.. Ashwani K. Sharma. Advocate. ____________________________________________________ 1 Whether reporters of the local papers may be allowed to see the judgment? No. 2 Per Rajiv Sharma, J. Since common questions of laws and facts are involved in both the appeals, the same were taken up together for hearing and are being disposed of by a common judgment. 1. Criminal Appeal No. 667/1996 has been preferred by the appellant-accused (hereinafter referred to as the accused for convenience sake) against the judgment of conviction and sentence dated 19.11.1996/28.11.1996 passed by the learned Additional Sessions Judge, Mandi in Sessions Trial No. 13 of 1993 (1992) whereby he has been convicted and sentenced for offence under section 304-A of the Indian Penal Code and sentenced to undergo simple imprisonment for one year and to pay a fine of Rs. 1,000/-. In default of payment of fine, he has been ordered to undergo simple imprisonment for three months. 2. Criminal Appeal No. 87/1997 has been preferred by the State against the judgment dated 19.11.1996/28.11.1996, whereby accused, who was charged with and tried for offences punishable under section 304 of the Indian Penal Code, has been acquitted, however convicted under section 304-A of the Indian Penal Code and sentenced, as noticed above. 3. Case of the prosecution, in a nutshell, is that on 16.8.1991, deceased Harji Ram took goats for grazing at 12.00 noon after taking his meals. PW-1 Parmilla Devi and PW-3 Meera Devi went to cut the grass and at about 4.00 P.M., PW-2 Kamlesh Kumar told PW-1 and PW-3 that altercation has taken place between accused Dass Ram and Harji Ram and Dass Ram has given stick 3 blow to Harji Ram. Harji fell down. PW-1 and PW-3 reached the spot. Harji Ram was taken to hospital where he succumbed to his injuries. The FIR was registered on the basis of statement made by PW-1 Parmilla Devi vide Ex.PW-1/A. The matter was investigated. Postmortem of the deceased was conducted by PW-14 Dr. Suresh Sharma. Viscera was sent for chemical examination and the report of the Chemical Examiner is Ex.PX. The challan was put up in the Court against the accused after completing all the codal formalities under section 207 of the Code of Criminal Procedure. 4. Prosecution examined as many as fourteen witnesses in all to prove its case against the accused. Accused was examined under section 313 of the Code of Criminal Procedure. Case of the accused is of simpliciter denial. The learned trial court acquitted the respondents. 5. We have heard the learned counsel for the parties and perused the record carefully. 6. Material witnesses produced by the prosecution to prove its case against the accused are PW-1 Parmilla Devi, PW-2 Kamlesh Kumar alias Suresh, PW-3 Meera Devi and PW-4 Hari Ram. PW-1 Parmilla has stated that the deceased was her father-in-law and was residing with them. She and PW-3 Meera Devi had gone to fetch grass. They came back and prepared meals during day time. Her father-in-law also took the meals at 12.30 O’ clock and he took the goats for grazing towards village Gonta. She and PW-3 Meera Devi again went to fetch grass. PW-2 Kamlesh 4 Kumar alias Suresh approached them and told that their father-in- law has been killed by accused. They went to Gonta immediately. Her father-in-law had been thrown on one side of the Khud. He was found unconscious and was vomiting blood and there was injury on his head. He disclosed them that he had been beaten up by Dass Ram. She went to village Tikri to inform PW-4 Hari Ram, Lambardar, and PW-3 was asked by her to take the goats to her house and inform the neighbourers. In the meantime, she came back, Lal Singh and Sher Singh, Pradhan also reached there. She went to village Dhanasi to bring palanquin. She made statement Ex.PW-2/A to the police. 7. PW-2 is Kamlesh Kumar alias Suresh. He is the sole eye witness. According to him, he had gone to Jamni to fetch Sugar from the Government Fair Price Shop. He was coming back at about 4.00 P.M. and he saw that his Taya (uncle) Harji Ram was grazing goats. Two-three goats of his uncle had entered the Ghasani of accused. Accused came from village Ghasani. He asked his uncle to drive away the goats from his Ghasani. The verbal duel took place between accused and his uncle. His uncle was carrying a stick in his hand. Accused Dass Ram snatched the stick from his uncle and gave blow with the same on the head of his uncle. His uncle felt giddy and fell down. He sustained injury and bleeding started from nose and ears. He was sitting at a distance of 10-15 feet. Dass came to him and sought his help to lift his uncle. However, he did not touch the uncle. Accused helped his uncle. Thereafter he left for his village. He met PW-1 5 Parmilla Devi and PW-3 Meera Devi on the way and told them that uncle has been assaulted by the accused. He also informed his uncle Sher Singh and other family members. In his cross- examination, he has admitted that when he went to Jamni, he found Sunil Kumar, Raju and Manohar grazing their cattle in the school ground. When he came back, they were still grazing their cattle and were sitting on the ground. He also joined them. He sat with them for fifteen minutes. In his cross-examination, he stated that Harji Ram was sitting at a distance of 15-20 meters from Peeple tree. They were sitting on the platform constructed around the people tree. There was fencing upto the height of 2-3 feet around the Ghasani land. In his cross-examination, he has further deposed that accused and Harji Ram had verbal duel for a period of 2-3 minutes. They were sitting near to each other. Harji Ram was sitting on a boulder. He and accused also came and sat on the adjoining boulder. The distance between these two boulders was 2-3 feet. His uncle was sitting on the lower side whereas accused was sitting on upper side. He has admitted that where his uncle was sitting there was steep slope towards the Khud. He has admitted that his uncle had kept the stick on the ground by his side, which was lifted by the accused and his uncle did not try to take the stick from the accused. It has further come in his cross-examination that the accused gave blow with stick on the head of his uncle with both the hands. He gave only one blow as a result of which Harji Ram fell down by the side of the Khud. The blood gushed out from the head of his uncle. 6 8. PW-3 is Meera Devi. Deceased Harji Ram was her father- in-law. She has testified that she and PW-1 Parmilla Devi had gone to fetch the grass. PW-2 Kamlesh Kumar came and told them that their father-in-law has been killed by the accused. They went to Gonta. They searched for their father-in-law and found him on the side of Khud. He told them that he was assaulted by the accused. She then stated that the accused came there and told them that he had given only one blow to their father-in-law and there is no danger to his life. She came back to the village and raised alarm. She has also admitted in her cross-examination that there is a steep slope from the place where Harji Ram was sitting upto the Khud. 9. PW-4 is Hari Ram, Pradhan of Gram Panchayat, Gonta. He has stated that he was bringing sugar from Jamni. PW-1 Parmilla called him to the spot. He went there. Harji Ram was lying there. He made enquires from Meera Devi and he was told by her that accused has assaulted Harji Ram. He collected other people, i.e. Lal Singh, Sher Singh etc. and took Harji Ram to the hospital. Police was informed by Himal Chand at his instance telephonically. 10. PW-5 is Harnam Singh. He has not supported the prosecution case. The matter was investigated by PW-13 Jaisi Ram, Inspector. He has prepared inquest report and also approached the Medical Officer for postmortem of the dead body. 11. PW-13 is Dr. Suresh Sharma, Medical Officer, Regional Hospital, Ani, District Kullu. According to him, Harji Ram died of 7 haemorrhagic shock due to spleenic and head injury. He has also opined that the injuries leading to the death of deceased were possible with stick Ex.P-1. 12. PW-1 Parmilla Devi, PW-2 Kamlesh Kumar alias Suresh and PW-3 Meera Devi are closely related. Neither PW-1 nor PW-3 has seen the incident. They have been told by PW-2 Kamlesh Kumar when they were cutting grass that the accused has assaulted Harji Ram. They visited the spot and tried to help their father-in-law. PW-1 Parmilla Devi had gone to village Tikri to inform PW-4 Hari Ram Lambardar and she told Meera Devi to take the goats to her house. PW-3 was also apprised by PW-2 Kamlesh Kumar about the injury inflicted upon Harji Ram by the accused. She has also stated that deceased told her that accused has given beatings to him. The whole case of the prosecution hinges on the statement of sole eye witness PW-2 Kamlesh Kumar. He is closely related to deceased. When PW-2 appeared in the witness box, he stated that his uncle was having a stick in his hand and the accused Dass snatched the stick from his uncle and gave a blow of the same on the head of his uncle. In his cross-examination, however, he has stated that his uncle had kept the stick on the ground by the side, which was lifted by the accused. According to him, accused has given one blow on the head of his uncle. PW-3 Meera Devi has stated that accused came to the spot and told them that he had given only one blow to her father-in-law and there was no danger to his life. PW-2 Kamlesh Kumar in his cross-examination has stated that when he 8 went to village Jamni to bring the sugar, he found Sunil Kumar, Raju and Manohar grazing their cattle in the school ground. When he returned from Zamni, they were still grazing their cattle in the ground. He also joined them. He sat with them for fifteen minutes. The boys, namely, Sunil Kumar, Raju and Manohar were grown up boys, but they have not been cited as witnesses by the prosecution. There is no explanation why these three boys, who were in the close proximity of the place of occurrence, have not been produced as witnesses. The other intriguing fact is that PW-2 Kamlesh Kumar, who was also about 16 years of age and student of 10th Class, had not stayed back when his uncle was hit by the accused. He has admitted that the accused had asked him to help his uncle, however, he did not touch his uncle and went to his village. His normal conduct would have been to help his uncle who according to him was bleeding. He has only told about the incident to PW-1 Parmilla Devi and PW-3 Meera Devi. 13. It has come in the statement of PW-1 Parmilla Devi that the place where her father-in-law was lying, is a thoroughfare and used by 15-20 villages. Houses of Arjan and Surjan were at a distance of 100 yards from the place of occurrence. In case the incident had taken place as projected by the prosecution, it ought to have been seen by neighbourers and other villagers, who use the thoroughfare. Neither PW-1 nor PW-3 chosen to inform Arjan or Surjan or their family members about the incident. The normal human conduct is to raise hue and cry and to apprise the people about the incident. PW-2 Kamlesh Kumar has also admitted that 9 the houses of Arjan and Surjan were nearby the place of occurrence. There are improvements in the statements of PW-2, the sole eye witness, as noticed above. His statement is not trustworthy. PW-4 Hari Ram is also related to deceased. He is also not eye witness to the incident. He had only helped the family members to take the deceased to hospital and to inform the police. It has come in the evidence of PW-14 Dr. Suresh Sharma that the deceased died of haemorrhagic shock due to spleenic and head injury and the injury could be caused with stick Ex.P-1. However, it has not been proved by the prosecution that the injury was caused by the accused. 14. We are of the considered view, after closely scrutinizing the evidence led by the prosecution, that it has failed to prove the case against the accused. Accordingly, judgment of the trial court dated 19.11.1996/28.11.1996 whereby the accused has been convicted and sentenced is liable to be set aside. Consequently, since the prosecution has failed to prove the case against the accused, the appeal preferred by the State is also liable to be dismissed. Order accordingly. Bail bonds furnished by the respondent/accused stand discharged. (Deepak Gupta), J. (Rajiv Sharma), J. 14.5. 2010 *awasthi*