IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No.283 of 1997. Date of decision: 29.10.2010 State of H.P ..Appellant Versus Gulshan & ors. ..Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr.Justice Sanjay Karol, J. Whether approved for reporting ? No For the appellant: Shri Vivek Singh Thakur, Addl. Advocate General. For the respondents: None. _____________________________________________________ Deepak Gupta, J, (Oral). This appeal by the State is directed against the judgment dated 10.12.1996 delivered by the learned Sessions Judge, Kangra Division at Dharamshala in Sessions Trial No.1 of 1996 whereby the accused have been acquitted of having committed offences 2 punishable under Sections 147, 148, 149 and 302 of the Indian Penal Code. 2. The prosecution story, in brief, is that the accused persons formed an unlawful assembly and in prosecution of the common object of this assembly murdered the deceased, Balbir Singh on 29.5.1995 near Bus Stand, Baijnath at about 11.05 a.m. According to the prosecution, deceased Balbir had come to Baijnath. The accused persons followed the deceased and outside the liquor vend, all of them caught hold of the deceased and then took him towards the Pandol Road where four of the accused caught hold of the deceased and the other two, i.e., Gulshan and Tihru gave knife blows to the deceased. 3. It is alleged that this incident was witnessed by PW/2 Kalawati. Thereafter, PW/5 Ravi Chand who is a Home Guard came to the spot and he found the deceased lying on the ground. He immediately lodged a report with the police. The police came on the spot and started investigation. It is alleged that in this occurrence, the accused Gulshan also received 3 injuries. He himself was going to Police Station to lodge the report. When he was on his way to Police Station, he met ASI Lal Singh, PW/26 and he told PW/26 about the occurrence. Gulshan, accused was taken to the hospital for medical examination and thereafter, the investigation was carried out. The statements of the witnesses were recorded. The weapons of offence etc. were taken into possession and the body of the deceased was sent for post mortem examination. Dr.Sawinder Bhatia, PW/1 opined that the death had occurred due to massive internal haemorrhage. The injuries were knife injuries. On completion of the investigation, challan was filed. The accused were summoned. They were charged with having committed offences punishable under Sections 147, 148, 149 and 302, IPC. The accused pleaded not guilty and claimed trial. After trial, they have been acquitted by the learned Trial Court. Hence the present appeal by the State. 4. The stand of the accused is that on 29.5.1995, accused Gulshan was standing at Bus Stand, Baijnath 4 to board a bus for Palampur. According to him, he was attacked from behind and knife blows were given to him. He raised a hue and cry and he found that the deceased Balbir who had khukri in his hand had attacked him. He apprehended danger to his life. Thereafter, he warded off the attack and received injuries on his hand. Thereafter, a lot of people gathered on the spot. The case of Gulshan, accused is that he was going to police station to lodge the complaint when PW/26 met him. 5. As far as the other accused are concerned, their stand is that of denial simplicitor. 6. All the independent witnesses except PW/2 and PW/5 have turned hostile. 7. According to PW/2 Kalawati, she was standing near the liquor shop when she saw the six accused persons accompanied by some other persons whom she could not identify dragging the deceased towards the Pandol Road. She followed them for 10 to 20 steps and saw that the accused had put chillis in the eyes of the deceased. They were all belabouring the 5 deceased and two of the accused gave knife blows to him. According to her, she thereafter became unconscious and does not know what happened thereafter. She was unable to state who took her from the spot. 8. The learned Trial Court discarded the statement of Kalawati, PW/2 on various grounds. The first ground is that the statement of Kalawati was recorded 8 to 10 days after the occurrence took place. This witness admitted that her husband and the father of the deceased were cousins. Therefore, the deceased was her nephew by marriage. It is hard to believe that a woman who had seen her husband’s nephew being murdered in broad day’s light would keep silent about such an occurrence for 8 to 10 days. Even assuming that she being a lady did not want to go to the Police Station and get her statement recorded with the police, she would have informed her husband and other family members about being a witness to the incident. 6 9. If the version of Kalawati is true then according to her, she fainted at the spot. If that was true then the prosecution shall have lead some evidence to show who took her home from the spot. Obviously, such a person who had taken her from the spot to home would have questioned her about the same and she would have told her family members that she fainted on seeing such a gruesome act being performed against her husband’s nephew. 10. Another reason to doubt the veracity of the statement of this witness is that though in her examination-in-chief, she named all the accused persons but when asked to identify the accused by name, she could not do so. She admitted that even before the police, she had only identified the accused by face. When questioned further, she stated that the accused were sitting in the police station and she was asked whether these were the persons who had attacked the deceased and then she identified the accused. Such identification is no identification in the eyes of law. This clearly shows that the police had 7 already arrested the accused who were shown to PW/2 and then she had identified them as the persons who had murdered the deceased. As such, no reliance whatsoever can be placed on her statement. 11. Even with regard to the incident, in question, the version of Gulshan, accused cannot be discounted. He set up a probable defence. He was medically examined by Dr.Nidrosh Gupta, PW/19 who found as many as 4 injuries on the person of the accused Gulshan. All these injuries are sharp edged injuries caused with a knife. The prosecution has failed to give any plausible explanation with regard to the injuries on the person of the accused. No doubt, some of the injuries are simple but there is one grievous injury also. Most importantly, these injuries are on the back of the accused and this shows that the defence raised by the accused that he was attacked by the deceased from behind is reasonable and probable. 9. In view of the above discussion, the learned Trial Court was justified in acquitting the accused. We find no reason to interfere in the well reasoned 8 judgment passed by the learned Trial Court. The appeal being without merit is accordingly dismissed. Bail bonds, if any, furnished by the accused are ordered to be discharged. ( Deepak Gupta ) Judge 29th October, 2010 (Sanjay Karol) (m) Judge