1 IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. A. No. 475 of 1996. Date of decision: May 24, 2010 State of HP …Appellant. Versus Murli …Respondent Coram: The Hon’ble Mr.Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting? No. For the Appellant: Mr. Anil Jaswal, Deputy Advocate General. For the Respondents.: Mr. Ajay Sharma. Advocate. Surinder Singh, Judge (Oral) The prosecution of the respondent for the offence punishable under section 302 of the Indian Penal Code resulted in acquittal as such the state felt aggrieved and dissatisfied by the impugned judgment of acquittal as such filed the instant appeal. 2. In short, the prosecution case can be summed up thus. 3. On10th February, 1994, at about 5 p.m, PW3, Amar Chand, was sharpening his sickle. In the mean time, he heard the shrieks of his mother raising alarm “Mar diya mar diya”. On hearing this, PW3 Amar Nath, went towards the courtyard of Rattan Chand, the brother of the respondent. He found 2 respondent present there and Ghato Devi his mother was lying nearby. The complainant asked the respondent as to why he had belaboured his mother, respondent picked up the quarrel with him. It is also the case of the prosecution that PW6, Parkash Chand, was lopping tree nearby who had witnessed the occurrence. He came down and rescued the complainant from the clutches of the respondent. Many persons gathered there alongwith other family members of Ghato Devi. Ghato Devi(deceased) was unconscious at that time. Amar Chand called for the doctor from Jia. PW2, Dr. S.S. Guleria, reached there. He did not find any sign of life in Ghato Devi, as such, he declared her dead. 4. The police was informed and the statement, Ex.PW3/A, of Amar Chand was recorded under Section 154 of the Criminal Procedure Code, which, culminated in the F.I.R Ex.PW13/A. 5. The police sent the dead body for the autopsy which was performed by Pw1, Dr. K.C. Kalyan on 11th February, 1994. On examining that dead body, he found mild swelling with dark brown colour over the right shoulder near the neck and on the left side also. On cutting the muscles, he noticed them crushed and congestion was present. He found no ligature mark, hands clinched mark pallor in limbs. He also did not find any mark of injury on the face. There was ½ centimeter abrasion on left patellar skin, glistening appearance was also found. The Doctor gave tentative opinion that death was due to asphyxia(suffocation possibly). 3 6. The viscera were sent for forensic examination. From the report Ex.Pw1/A no poison was found detected. The post mortem report is Ex.PW1/C. Later the doctor confirmed the death due to asphyxia and his final opinion is Ex.PW1/C. The police had also taken the photographs of the dead body and had also prepared the siteplan. 7. The police on the spot recorded the statement of the witnesses and on completing the investigation, challan was presented against the respondent in the court for his trial. 8. We have heard learned counsel for the parties and have carefully reappraised the evidence on record. 9. To prove its case, the prosecution examined its witnesses and statement under Section 313 Cr.P.C of the respondent was also recorded. The respondent faced the trial for the offences aforesaid but at the end, he was acquitted on the ground that he could not be connected with the alleged offence. 10. The case of the respondent was denial simplicitor. He was called upon to enter into defense evidence in defense was led by the respondent. 11. The respondent was acquitted mainly on the ground that the alleged eye witness PW3 Amar Chand and doctor had contradicted the prosecution case. Further, the possibility of the deceased having died on account of fall could not be ruled out. 12. Sh. Anil Jaswal, Deputy Advocate General, submits that learned trial court did not appreciate the evidence of the prosecution in right perspective and in case it is appreciated 4 properly, the acquittal of the respondent could be converted into conviction. 13. Contra Sh. Ajay Sharma, counsel for the respondent, supported the impugned judgment of acquittal. 14. We have carefully examined the record to appreciate the rival contentions. The version of complainant, Amar Chand who was examined before the learned trial court as PW3 lays on doubt. He stated that he only heard shrieks of his mother near from the courtyard of Rattan Chand, while he was sharpening his sickle. He went there and asked the accused as to why he had beaten, his mother. On this, he abused the complainant and started quarrelling with him, later he was saved from his clutches by PW5, Partap Chand, and PW6, Parkash Chand. Pertinently, the wife of complainant was not examined to corroborate his version who according to him was with him. The complainant is alleged to have reached the spot but he did not say in his statement Ex.PW1/A that PW6 and PW5 were also present. But when examined in the court he stated that other persons reached on the spot followed by his wife and PW6 came later. 15. PW6, Parkash Chand, stated that he noticed the respondent uprooting the stones of the retaining wall of the complainant to which Ghato Devi had protested whereupon the accused had given slaps on her face, she cried for help and was crying “Mari Mari”. He also stated that thereafter the respondent caught hold of her from the neck and after sometime Amar Chand reached there and then he picked up the quarrel with him. He 5 (PW6) intervened and relieved the Amar Chand from his clutches but with respect to aforesaid version that he was lopping the tree for the fodder of the cattle, he was confronted with the statement recorded by the police under Section 161 of the Criminal Procedure Code wherein this fact did not find mention. He was also confronted with the version that he had seen the respondent giving slaps to the deceased but this fact was also not found mentioned in the said statement. He was further contradicted with respect to his assertion that he had relieved the respondent from the clutches of the accused was also not mentioned in the statement recorded by the police. So in that manner his version before the court was an improved version and no explanation was given as to why he did not state above facts to the police, to which he testified before the court. 16. Similarly Pw7 Kesro Devi who is alleged to have heard the commotion from the house of nearby, when she was in her cowshed and saw the respondent and the complainant grappling with each other, whereas the deceased was lying nearby retaining wall. But all this assertion made by her before the Court also did not find mention in her statement recorded by the police under section 161 of the Criminal Procedure Code. She also stated that so many houses surround the house where the alleged incident has taken place. Surprisingly, except the independent witnesses no other independent witness was examined. 17. If the statements of both these witnesses are ignored altogether from its consideration, there appears no other 6 evidence on record to connect the respondent with the alleged offence. 18. The ligature marks according to doctor were not found on the neck of the deceased. Had she been strangulated, the strangulation marks should have been on the neck of the deceased whereas the doctor stated that there was only one mark on the left side of the neck and also the shoulder, but simultaneously he also stated that the deceased could have died on account of fall from the height of about three feet and fell unconscious. He further stated that if there is a compression of the chest wall due to fall and the mouth and the nostrils are also blocked it could cause her death. The deceased was aged about 70 years of age. There was also stones lying scattered in the courtyard of the Parkash where the deceased was lying on the ground so the probability of fall can also not be ruled out. 19. Further PW14, Roshan Lal, SI/SHP who prepared the inquest report EX.PW4/A. He had noticed as many as five injuries on the person of the deceased which were on the left ear, left eye, left side of the throat, also on the left and back of the left knee joint, on the right ear and the right side of the chest of Smt. Ghato Devi. But PW1 doctor in his cross-examination admitted that he was not able to detect any mark of injury on the throat and eyes of the deceased suggestive of strangulation. In other words, the evidence of application of force on the mouth and nostrils of the deceased was not found by the said medical officer. The exerted Manual pressure on the mouth and nostrils could not be detected. 7 In case of strangulation many factors do count which are pressure, injury signs and application of violence which would produce suffocation. If these signs are absent then no positive findings could be given even by the doctor based upon postmortem alone regarding the death. This may be the reason that doctor indicated the asphyxia possibly by suffocation. Therefore, in these circumstances, the prosecution failed to connect the respondent with the aforesaid offence either by direct or circumstantial evidence. 20. Thus, on minute analysis of the above circumstances, we find that the learned trial court had rightly picked up, examined, and finally disbelieved each of the circumstances and came to the conclusion that the prosecution failed to prove the case against the respondent beyond a reasonable doubt. Therefore, we see no reason to interfere with the impugned judgment of acquittal. Accordingly, the appeal is dismissed and the respondent is discharged of their bail bonds entered upon by them at any stage during the proceedings of this case. 21. Send down the records. ( R.B.Misra ). J. May 24, 2010 (Surinder Singh).J. (Bhatt)