IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 742 of 1996 Date of decision: 18.05.2010 ________________________________________________________________ The State of H.P. .....Appellant. Versus Mirju Ram and others .....Respondents. Coram The Hon'ble Mr. Justice R.B. Misra,J. The Hon'ble Mr. Justice V.K. Sharma, J. Whether approved for reporting?1 ________________________________________________________________ For the appellant: Mr. Rajinder Dogra, Additional Advocate General with Mr. Anil Jaswal, Deputy Advocate General. For the respondents: Mr. Ashok Sharma, Advocate. ________________________________________________________________ R.B. Misra, J (Oral) . The present criminal appeal has come for consideration after leave to appeal under Section 378(3) of the Code of Criminal Procedure has been granted in reference to the impugned judgment and order dated 14.05.1996, passed by the learned Additional Sessions Judge, Mandi, District Mandi, in Sessions Trial No. 29 of 1992, acquitting the alleged accused under Sections 147, 302, 201 read with Section 149 of the Indian Penal Code. 2. In order to adjudicate the criminal appeal, it is necessary to give the factual background of the case. 3. On 11.02.1992, Rameshwar Ram, Pardhan, Gram Panchayat Kandhi Sapnol, lodged a report with the Police that on 10.02.1992 when the meeting of the Gram Panchayat was in session, 1 Whether reporters of Local Papers may be allowed to see the judgment? :-2-: Shiv Kumar came and told that one 'Gorkha' Narain Singh, who was residing in the ground floor of his shop was not seen for the last 4/5 days and the door of the room was closed from inside, on which Pardhan alongwith members went there and called from outside, but no reply was received from that room and when the door was pushed, one wooden plank fell down and the door was opened and one person was found lying on the bed box. When the quilt was removed, it was found Narain Gorkha and the blood was found to have oozed out from his mouth and nose. On this report, investigation was carried out and after the evidence of murder, the alleged accused were arrested and challaned and sent up for trial to the court. 4. The alleged accused were charged for the commission of offences under Sections147, 302 and 201 read with Section 149 of the Indian Penal Code. Prosecution in order to prove its case examined as many as 18 witnesses, whereas the alleged accused have denied the alleged incident, offences and the charges in their their statements under Section 313 Cr.P.C. 5. PW-1 Rameshwar Ram, complainant, President of Gram Panchayat, Kandhi Sapnol, while supporting the prosecution version has stated that when he received information of missing of Gorkha Narian Singh for the last 4-5 days, then on approaching to the place where Narian Singh could be available, there it was found that he was dead and inquest report Ex. PW-1/B, recovery memo Ex. PW-1/C and recovery of dead body and other items were made. However, in cross- examination PW-1 Rameshwar Ram has stated that there was no window or any other entry to the room except the door where dead body of Narian Singh was lying on a box, covered with quilt. 6. PW-2 Buteshwar, had made similar statement like PW-1 :-3-: Rameshwar Ram, and has further stated that Bansi Ram and Ram Singh told him that they had quarrel with Narian Singh on 05.02.1992 after consuming liquor and he was beaten with wooden piece (seti) by alleged accused Tilakoo and thereafter Narian Singh (the deceased) was brought and placed in a quilt in the room. 7. PW-3 Ram Saran in his testimony has deposed that he went to the spot with Pardhan of Gram Panchayat and found the dead body of Narian Singh in the room. PW-1 Rameshwar informed the police and he was asked to remain on the spot to guard the dead body, however, PW-3 was declared hostile, as he did not support the prosecution version during his cross-examination. 8. PW-4 Inder Singh was declared hostile. PW-5 Radha Krishan has made similar deposition like PW-2 Buteshwar. PW-6 Devi Ram has taken the parcels and deposited the same in Forensic Science Laboratory. PW-7 Jai Parkash has taken the photographs Ex. PW-7/1 to Ex. PW-7/8. PW-8 Todardhar, Patwari, has prepared the tatimas. PW-9 Raghu Ram was declared hostile as he has not supported the prosecution version. Even in his cross-examination he stated that he did not take liquor with alleged accused. PW-10 Om Kumar was declared hostile. PW-11 Bhim Chand, Judicial Magistrate Ist Class, has stated that he recorded the statements of Raghu Ram, Ex. PW-11/B and Inder Singh, Ex. PW-11/C. PW-13 Pyare Lal was declared hostile. PW-13 Constable Todar Mal, has stated that he brought the sealed parcels from the hospital and handed over the same to LHC Raghu Nath. PW-14 ASI Shamsher Singh has conducted part investigation and arrested alleged accused Nima Ram and Tilakoo. PW-15 Constable Lal Singh has brought the original rojnamcha and proved the copy Ex. PW-1/A. PW-16 Inspector Lekh Ram has deposed that he remained SHO Police Station, :-4-: Karsog from July 1991 to July 1993 and had carried out the investigation, however, has reiterated the prosecution version. PW-17 Raghu Nath Singh has proved the FIR Ex. PW-16/B. PW-18 Dr. Ravinder Dayal has stated that on 12.02.2009 he conducted the postmortem examination of Narian Singh Gorkha, as per inquest report Ex. PW-1/B. According to the medical report cause of death was intracranial haemorrage which caused compression of cerebral cortex and brain stem involving vital centers. 9. On examination of prosecution witnesses and material on record, we noted that PW-3 Ram Saran, PW-4 Inder Singh, PW-9 Raghu Ram, PW-10 Om Kumar and PW-12 Pyare Lal have not supported the prosecution version and nothing concrete could be derived in favour of prosecution from the testimony of PW-1 Rameshwar Ram, PW-2 Buteshwar, PW-5 Radha Krishan as well as PW-18 Dr. Ravinder Dayal and PW-16 Inspector Lekh Ram. We also noted that there is neither any eye witness of the occurrence nor there is any circumstance to co-relate the alleged accused with the commission of the offences. The alleged statements of Ram Singh and Bansi Ram on the basis of which a wooden plank was alleged to have been recovered was not proved at all and that even Tanna Ram in whose house the alleged quarrel has taken place has not been examined by the prosecution in support of its case. Prosecution has, therefore, failed to prove the case against the alleged accused persons. 10. We also note that out of many persons named in the report examined by the police during investigation only three witnesses PW-1 Rameshwar Ram, PW-2 Buteshwar and PW-3 Ram Saran has supported the prosecution case. PW-1 Rameshwar Ram has only proved that Ram Singh and Bansi Ram told him that they had quarrel with Narian Singh :-5-: on 05.02.1992 after consuming liquor and Narian Singh was beaten with seti (a wooden piece) by the alleged accused Tilakoo and he died. This is only circumstantial evidence found against the alleged accused. 11. PW-3 Ram Saran, PW-4 Inder Singh, PW-9 Raghu Ram, PW-10 Om Kumar and PW-12 Pyare Lal, all the witnesses of the prosecution were declared hostile as they did not support the prosecution case at all. 12. We also note that there is no iota of evidence led by the prosecution that any person has seen the alleged accused and the deceased taking liquor together or indulging in altercation and thereafter beating Narian Singh (the deceased). According to the prosecution, the alleged accused had gone to the house of Tanna Ram where Narian Singh (the deceased) was also present and they were seen together lastly. But, Tanna Ram has neither been examined nor any witness of prosecution has seen the alleged accused and the deceased at the house of Tanna Ram for the last time. 13. The recovery of wooden plank Ex. P3 was neither the weapon of offence nor it has been prove that any blood was found on the wooden plank on examination by the Chemical Examiner and the blood was found relatable to the blood of Narian Singh (the deceased). The wooden plank was recovered from the open field, as such the circumstantial evidence is not making chain linking the offence against the alleged accused. While examining the testimony of PW-1 Rameshwar Ram, PW-2 Buteshwar and PW-5 Radha Krishan we noticed that as per statement of PW-1 Rameshwar Ram, many persons of the village were assembled on the spot and he went to the police station to lodge the report and Ram Singh and Bansi Ram made extra judicial confession regarding giving of beating to Narian Singh after taking :-6-: liquor on 05.02.1992. But all the other witnesses examined by the prosecution were declared hostile as they have not supported the prosecution version, therefore, the statements of Ram Singh and Bansi Ram does not inspire confidence, specifically when five witnesses have been declared hostile and other witnesses have not been examined by the prosecution. It is worth to be mentioned that the room was found to have been closed from within with a wooden rod Ex. P2 from inside and there was no explanation as to how the same could be closed from inside when there was no other point of entry or exit to the room and how the room was closed by the alleged accused after putting the body of the deceased inside the room. 14. On the basis of material on record and prosecution witnesses, inference has rightly been derived by the learned Additional Sessions Judge, Mandi that the prosecution has failed to prove its case beyond reasonable doubt against the accused. On examination of material on record and prosecution witnesses and in view of the aforesaid analysis we also find that the prosecution has failed to prove its case and as such there is no scope of interference in the judgment of the trial court and appeal being devoid of merit is dismissed. (R.B. Misra) Judge (V.K. Sharma) Judge 18th May, 2010 (virender)