IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr. Appeal No. 177 of 1996 Date of Decision : March 11, 2010 State of H.P. …Appellant. Versus: Anil Kumar @ Billa & Others ………....respondents-accused. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant: Mr. Vivek Thakur, Addl. A.G. with Mr. R.M. Bisht, Dy. A. G. For respondents 1 to 5 & 7: Mr. Dharamvir Sharma, Sr. Advocate with Mr. D. K. Khanna, Advocate For respondent 6 : Mr. Sandeep Panday, Advocate Deepak Gupta, J. (Oral). This appeal by the State is directed against the judgment dated 14.11.1994 delivered by the learned Additional Sessions Judge, Solan, Camp at Nalagarh, H. P., in Sessions Trial No. 4-NL/7 of 1993 whereby he acquitted the accused of having committed offences punishable under Sections 147, 149, 304 & 323 IPC. 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 First, the undisputed facts are that deceased Rana Pratap Singh had set up a factory under the name and style of M/s. Chandrika Textile in village Khera at Nalagarh. It appears that this factory did not run successfully and he took a decision to close down the same. This factory was financed by the H.P. Financial Corporation (H.P.F.C). Rana Pratap Singh had to pay outstanding dues to the H.P.F.C.. He therefore entered into an agreement with accused Om Parkash and accused Rajender Parkash Batish (since deceased), whereby they agreed to take over his unit and repay the amount to the H.P.F.C.. However, the H.P.F.C. did not assent to the arrangement and as such this proposal to transfer the factory was not accepted. The H.P.F.C. thereafter issue notices to Rana Pratap Singh that it intended to take over the factory to realize the debt, by sale of the assets of the unit. Om Parkash entered into negotiations with the Corporation for purchase of the factory and the machinery lying therein. Faced with this situation, Rana Pratap Singh decided to restart the factory himself. He engaged a mechanic for repair and maintenance of the machinery. He was assisted by one Hari Om (PW-2). Admittedly, he had brought up Hari Om like a son and Hari Om had been educated by Rana Pratap Singh (deceased). On 28.10.1990, when complainant PW-2 Hari Om went to the factory at about 8.30 a.m., at that time Kishori Lal, the mechanic was also there in the factory. Rana Pratap Singh 3 came to the factory at about 10.00 a.m. and another servant of Rana Pratap Singh named Bidhi Chand (PW-3) came to the factory later. It is alleged that at about 11.30 a.m. accused Rajinder Batish, Arvind Kumar and Anil Kumar came and hurled abuses at the deceased. Complainant Hari Om objected to such abusive language being used. Upon this the three accused charged towards Rana Pratap Singh and accused Anil Kumar @ Billa struck Rana Pratap Singh in the chest with his head as a result of this Rana Pratap Singh fell down. It is further alleged that accused Anil Kumar fled away from Nalagarh on his motorcycle. Hari Om and Bidhi Chand lifted Rana Pratap Singh and placed him on a scooter with the intention of taking him to Nalagarh. However, the other accused obstructed them for doing so and had a scuffle with Hari Om and Bidhi Chand. Somehow the complainant managed to escape and reached Nalagarh on the scooter, where he met his brother Tirath Chand (PW-4) near the hospital. The two then contacted Dr. G. D. Khullar (PW-15) and took him to the spot in a taxi. When the Doctor reached the spot, the accused Joginder, Hamir, Raj Kumar and Het Ram were also there and they joined the other accused Rajender Parkash and Arvind Batish. They prevented the Doctor from giving medical aid to Rana Pratap Singh and assaulted PW-3 and PW-4. PW-4 Tirath Chand fled away from the spot. Finally the Doctor G. D. Khullar (PW-15) managed to examine the deceased but he had unfortunately expired by that time. On the same day PW-2 4 lodged a complaint with the Police Station. On the basis of which FIR No.135/90 (Ext.PG) was recorded. The body of the deceased Rana Pratap Singh was sent to hospital for post-mortem. The police then conducted the investigation and finally the challan was filed and the case committed to the Court of Sessions and the accused charged for committing the offences as detailed hereinabove. They pleaded not guilty and claimed trial. After trial they have been acquitted. Hence, the present appeal by the State. We have heard Mr. Vivek Thakur, learned Additional Advocate General on behalf of the State and Mr. Dharamvir Sharma, learned Senior Counsel assisted by Mr. D. K. Khanna, Advocate on behalf of accused No. 1 to 5 & 7 and Mr. Sandeep Panday, Advocate on behalf of accused No.6. To substantiate the charge of murder, the prosecution must prove that the death of the deceased is a result of the injuries caused to him. This has not been proved by the prosecution in the present case. We may refer to the statement of PW-1 Dr. Anil Bhardwaj who conducted the post mortem on the deceased. His initial professional opinion after conducting the post mortem, which opinion remained unchanged after receipt of the Chemical Examiner’s Report, is that the death was caused due to myocardial infarction. He further goes on to state that if a man having ischaemic heart disease is struck on the chest with a fist by someone, the myocardial infarction may 5 be precipated, resulting in instantaneous death. When cross- examined Doctor Bhardwaj stated that he did not notice any external injury on the chest, ribs, cartilage and the area surrounding the heart. He also stated that there was no injury in the pericardium myocardium or other coverings of the heart. In fact he goes on to state that this was a case of extreme atherosclerosis (narrowing of arteries). Obviously, narrowing of arteries would not take place due to blow of fist. Dr. Bhardwaj has also stated that a person with such disease can suddenly die due to anxiety, excitement, fear & worry. He has categorically stated that the death was as a result of myocardial infarction because he did not notice any injury or even mark of injury in or around the heart. No doubt he states that it is not necessary that every blow must leave some impact and mark on the chest but goes on to state that if a strong blow is given then some evidence of use of force or violence would be there on the external parts of the body. A close perusal of the statement of Dr. Bhardwaj clearly indicates that he has not opined that the death had occurred due to blow on the chest. His opinion is that the death had been caused by myocardial infarction which in layman’s language is called heart attack. The heart attack may have been triggered by a quarrel which took place between the accused and the deceased. It cannot be said with certainty that it was a result of head blow given by accused Anil Kumar. 6 Next coming to the question whether the accused Anil Kumar gave a blow to the deceased or not and also whether the other accused prevented PW-2 & PW-3 from taking the deceased to hospital or that the accused Anil Kumar prevented PW-15 Dr. Khullar from giving medical aid to the deceased. While considering this aspect of the case, we may notice some admitted facts. The site plan (Ext.PO) prepared and proved by the Investigating Officer shows that the factory M/s. Chandrika Textile was situated in an area where there were a large number of residential houses, shops etc. In fact the prosecution witnesses themselves have admitted that a large number of people had collected at the spot when the fight between the deceased and the accused took place. It is therefore, obvious that independent witnesses could have been associated with the investigation. The two star witnesses of the prosecution are PW-2 & PW-3. One admits that he had been treated like a son by the deceased throughout his life and the second witness states that he had been a servant of the deceased for the last 20 years. In that sense they may not be totally independent witnesses. The evidence of relatives or the friends cannot be discarded only on this ground. However, if independent witnesses are available and the Investigating Officer chooses not to examine any independent witness, then he must give some explanation for doing so. This has not been done in the present 7 case. What to talk about other independent witnesses, the prosecution did not even care to examine Kishori Lal who was the mechanic. Therefore, an adverse inference will have to be drawn against the prosecution that this witness would not have supported its case and further more the evidence of the witnesses who have been examined must now be scanned with greater care and caution. In such circumstances, if there are contradictions in the statements of the witnesses who cannot be termed to be independent witnesses, the benefit has to go to the accused. The learned trial Court in its judgment has brought out the glaring contradictions in the statements of the witnesses. PW-2 Hari Om stated that after the deceased was injured by accused Anil Kumar, he (Hari Om) and PW-3 Bidhi Chand had seated the deceased on the scooter to bring him to the hospital at Nalagarh, but the other two accused persons present at that time i.e. Rajinder Parkash and Arvind Batish pulled the deceased from the scooter. The version given by PW-3 is different. According to him, he and Hari Om were not even permitted to seat the deceased on the scooter. Another very important contradiction is that according to this witness as well as PW-4 Tirath Chand when Doctor Khullar was brought on the spot, the two accused namely Rajinder and Arvind and the other accused who had by then reached the spot i.e. Joginder, Hamir, Raj Kumar and Het Ram 8 did not allow the Doctor to provide medical aid to the deceased. However, PW-15 Dr. Khullar does not say that anybody prevented him from giving treatment to the deceased. This clearly shows that PW-2 & PW-3 are making false statements in Court. Therefore, it would be highly unjust to rely upon their statements to convict the accused. PW-4 Tirath Chand in his statement has stated that PW-2 had informed him that Arvind, Hamir Chand, Joginder, Chet Ram and Raju had quarrelled with the deceased and that Billa had struck Rana Pratap Singh on the chest with his head. If PW-2 could inform PW-4 about these facts what prevented him from telling the Doctor the complete details of the incident. PW- 4 has stated that he was informed at the hospital that Arvind, Hamir Chand, Joginder, Chet Ram and Raju had quarrelled with the deceased. However, PW-2 Hari Om does not name any person other than Rajinder Singh, Anil Kumar and Arvind Batish in the first part of the incident. According to him the other persons Arvind, Hamir Chand, Joginder, Chet Ram and Raju came only when they returned from the hospital. It is apparent that PW-4 is therefore, not telling the truth. Furthermore, according to this witness he ran away from the spot when the accused persons prevented the doctor from examining the deceased Rana Pratap Singh. In the next breath he states that though he was there when the police arrived. This shows that 9 either the police had arrived prior to the doctor reaching the spot or this witness is telling a lie. According to the two star witnesses the police came to the spot after Doctor Khullar had arrived. However, according to the evidence led on record, including the statement of Dr. Khullar, it is apparent that the police had already reached the spot. PW-15 Dr. Khullar states that 2-3 boys came and told him that Rana Pratap Singh had a quarrel in the village with some persons and he had fallen down unconscious. In case the accused Anil Kumar had actually hit the deceased then PW-2 who allegedly witnessed the incident would have told Doctor Khullar that the deceased had been hit by some persons. Dr. khullar does not state that he was obstructed by any person. According to him, he stayed at the spot for about 5 to 10 minutes. He further states in cross-examination that he thinks that the police people had reached the spot when he was returning back for Nalagarh. PW-6 the wife of the deceased states that she reached the spot at about 12.10 p.m. and by then the police had arrived there but she does not say that the Doctor was there. Another infirmity in the prosecution case is that according to the prosecution, Hari Om after the entire incident had happened went to the police station and lodged the report at 11.30 a.m. and thereafter the police arrived at the spot. This is totally false, since according to the Doctor by the time he 10 reached the spot, the police had arrived. Even according to the PW-6, when she reached at 12.10 p.m. the police had already arrived. This lends credence to the defence version that the main accused had gone to call the police. In view of the above discussions, we find no merit in the appeal. The learned trial Court rightly acquitted the accused. The appeal is accordingly dismissed. The bail bonds furnished by the accused are ordered to be discharged. ( Deepak Gupta ) Judge. ( Sanjay Karol ), Judge. March 11, 2010. (rana)