1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.422 of 2005. Judgment reserved on : 23.05.2008. Decided on: May 30th,2008. ____________________________________________________________ Uttam Chand. …..Appellant. Versus State of H.P. …..Respondent. Coram Hon’ble Mr. Justice Surjit Singh, J. Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant : Mr. M.S. Guleria, Advocate. For respondent : Mr. P.K. Sharma, Additional Advocate General with Mr. P.M. Negi, Deputy Advocate General. __________________________________________________________ PER SURINDER SINGH,J. Appellant was tried and convicted, allegedly for committing the murder of Mali Ram and was sentenced to undergo life imprisonment and to pay a fine of Rs.10,000/- under Section 302 of the Indian Penal Code. The appellant has assailed his conviction and sentence in the instant appeal on law and facts. In short, the prosecution story is that the deceased, Mali Ram owed Rs.500/- to the appellant. On 3.7.2003, PW-1 Ram Singh, the brother-in-law of the deceased had gone to Ner-Chowk alongwith his Whether reporters of the Local papers are allowed to see the judgment? Yes. 2 wife to extract her tooth. While returning, they met Mali Ram around 2 P.M., in village Ratti. He made his wife to board the bus to her parental village, named Balt. Thereafter Ram Singh and the deceased proceeded towards Ratti bridge and took tea in the shop nearby. After waiting for the Contractor to come, who did not come, they went on foot towards village Balt. On the way they met the appellant, Uttam Chand an ex-servicemen, in village Rathol, who was standing on the side of the road. The appellant demanded Rs.500/- from Mali Ram, but he told him that he had no money and would pay him in 3-4 days. On hearing this reply, the appellant caught hold of Mali Ram, lifted him and threw him on the road on his back. He also gave him 3-4 kick blows on his chest. Mali Ram died there and then, on sustaining the head injury. Ram Singh raised alarm. He went to the house of Mali Ram deceased and informed his wife PW3 Dhani Devi about the incident and also met Kunta Devi. Chinu Ram, Hima Devi and Khimi Devi came to the spot. Many people had gathered there. On coming to know about the death of Mali Ram, PW- 7 Bishan Dass, an ex-Pradhan, who was in a marriage also reached there and informed the 3 police telephonically. On his information, the police recorded the report Ex.PW10/A in the daily diary. Thereafter, Om Prakash (PW14)SHO, Police Station Balh, proceeded to the spot alongwith ASI Dina Nath, ASI Hoshiar Singh and alongwith other police officials. On reaching the spot, the statement Ex.PW1/A of Ram Singh under Section 154 of the Code of Criminal Procedure was recorded, on the basis of which a formal FIR Ex.PW11/A was registered in the Police Station. Police took the photographs of the dead body and prepared the inquest papers Exts.PW14/B and C. The autopsy of the dead body was performed by Dr. Jiwa Nand Chauhan (PW2), in Zonal Hospital Mandi and he issued postmortem report Ex.PW2/A. In the opinion of the doctor, the deceased had died due to the head injury. The police took into possession the blood stained earth from the spot vide memo Ex.PW5/A. On the search of the house of the appellant, the police recovered blood stained T-shirt Ex.P2 of the appellant, which was lying on the bed, vide memo Ex.PW5/B. Police also prepared the site plan Ex.PW14/D of the place of occurrence. 4 The case property was sent for chemical examination. The appellant was arrested on 13.7.2003. The report of the chemical analysis Ex.PW14/F was received. T-shirt and the blood sample of Mali Ram was found to have contained human blood of Group-A. The statements of the witnesses were recorded by the police and on conclusion of the investigation; the challan was presented in the court for trial of the appellant under Section 302 of the Indian Penal Code. The appellant was charge-sheeted by the trial court. He pleaded not guilty and claimed trial. The prosecution examined its witnesses. The appellant was also examined under Section 313 Cr.P.C. His case was that of denial simplicitor. He was called upon to enter into his defence, but he did not lead any evidence in defence. The trial court relied upon the sole testimony of PW1 Ram Singh and at the end of trial convicted and sentenced the appellant as aforesaid. During the hearing of the case in appeal, on going through the entire record, we felt that besides PW-1 Ram Singh, there was a lady, namely Suvidha Devi, who was working in her field nearby who had witnessed the occurrence and further to 5 clear certain facts, we directed Suvidha Devi, to examine her as a Court witness and also re-examine PW-14 Om Prakash, Investigation Officer, so as to enable us to reach the truth. On 14.5.2008, we recorded the statements of Suvidha Devi and Om Prakash, S.I. which we shall discuss hereinafter while discussing the testimonies of other witnesses. It is submitted By Mr. M.S. Guleria, learned counsel for the appellant that Suvidha Devi, the court witness, did not implicate the appellant rather she had contradicted PW-1 Ram Singh, the brother-in-law of the deceased. According to the learned counsel, the version given by PW1 is tainted and cannot be believed at all as his conduct has not been above board. Further that there are material contradictions appearing in the record and the statements of the prosecution witnesses. It is also submitted that Suvidha Devi, (CW) has stated that the deceased was drunk and staggering while walking and fell on the road. She did not see the appellant on the spot which has caused a dent in the prosecution case. On the top of it, the viscera of the deceased was not sent for the chemical examination, thus an adverse 6 inference has to be drawn. The Doctor also stated that the fatal injury on the head of the deceased could be caused by a fall, therefore, in these circumstances, it is hazardous to rely upon the testimony of PW-1 Ram Singh, who neither informed the police nor tried to provide the help to the deceased and after leaving the deceased alone, only returned to the spot, on the arrival of the police. His conduct is doubtful and his testimony does not inspire confidence. Contra, Shri P.K. Sharma, learned Additional Advocate General, duly assisted by Mr. P.M. Negi, learned Deputy Advocate General, while supporting the impugned judgment of conviction has forcefully argued that though PW-1 Ram Singh is a relation witness of the deceased, but his conduct cannot be doubted on this score. He is a natural witness and has given the vivid account of the occurrence and was rightly relied upon by the trial court. Therefore, there is no error in the impugned judgment. We have given our thoughtful consideration to the rival contentions of the parties and have carefully gone through the evidence on record. 7 There is no dispute that it is not the quantity but the quality of the witnesses which matters for determining the guilt or innocence of the accused in the criminal cases. However, it is equally true that when a case is based upon the testimony of the only witness, his statement must be confident and inspiring, leaving no doubt in the mind of the court being above from all suspicions. Therefore, we proceed to legally scan the statement of PW-1 Ram Singh in particular and the other evidence on record, in general. PW-1 Ram Singh deposed that at about 12 noon, Mali Ram deceased had met him at Ratti when he was returning from Ner-Chowk after getting the teeth of his wife checked up. He sent his wife to home and he alongwith Mali Ram waited for the contractor upto 2 P.M. When the contractor did not come, they started on foot towards village Balt. On reaching village Rathol, Uttam Chand appellant met them, who was standing on the road. He demanded Rs.500/- from Mali ram. When he replied that he had no money and would pay after about 3-4 days, the appellant caught hold of deceased and lifted him above his head and then threw him on the road on his back. He sustained the injury on 8 his back portion of the head. The appellant also gave 3-4 kick blows on the chest of the deceased. Mali Ram died immediately on the spot. He raised the alarm. There was a lady sitting about 30 feet away of the alleged place of occurrence. Thereafter, he went to the house of the deceased to inform his wife (PW3) about the incident. Prior to this, Kunta Devi (PW6) met him. She was also informed about the incident. Then he went to the house of his in-laws at village Rathol and informed Chunni Lal about the incident. Thereafter he alongwith Hima, Khimi and Dhani came to the spot and saw the deceased dead on the road. Thereafter, the police came there and recorded his statement Ex.PW1/A. In his cross-examination, he stated that deceased Mali Ram was raised up to the height of 3 feet above the head by the appellant and then he threw him on the ground. He was confronted with his statement Ex.PW1/A wherein this was not so recorded. Giving of the kick blows by the appellant on the chest of the deceased was also not found mentioned therein. Further he having told about the incident to the Kunta Devi (PW6) is not mentioned in the said statement. He also did 9 not know that deceased was intoxicated but at the same time he also did not deny the fact that the deceased was not drunk. According to him Suvidha Devi ( court witness) was the only lady, who had seen the complete occurrence. He further admitted that there was a beerh (retailing wall) adjacent to the road by the side of the house of Suvidha Devi. However, he denied that, the deceased fell down from the beerh as he was intoxicated and he (PW1) had dragged him to the road. He also stated that he had noticed number of injuries on the chest and abdomen of the deceased, which fact stands falsified by the statement of the doctor aforesaid, who had conducted the postmortem of the dead body and duly corroborated by the statements of Kunta Devi and the investigating officer, who also stated that except the injury on the head there were no other injuries on the chest and the abdomen of the deceased. Suvidha Devi is admittedly an independent witness, who is alleged to have seen the occurrence, was not examined before the trial court, was examined by us as a court witness. She deposed that she was present in her field yielding the maize crop. She heard the noise of the 10 commotion coming from the side of the road. She did not go to that side, but saw from the fields itself that Ram Singh PW1 was going towards the house of Nandu and Mali ram was lying on the concrete surface above the road and she did not see anybody else present there. In her cross-examination conducted by the learned Deputy Advocate General, she has stated that Ram Singh and Mali Ram were speaking to each other and she could not make out as to what they were saying as she was at a distance of approximately 50 years away. She denied the presence of Uttam Chand appellant on the spot and also physically lifting and throwing the deceased by him on the road. In the cross-examination conducted by the learned counsel for the appellant, she deposed that the police reached the spot after about half an hour of the occurrence and before that many persons had gathered there. Ram Singh, Nanak Chand, Bakshi Ram Pradhan and Dhani Devi were also present. She admitted that deceased was drunk and because of drunkenness, he was staggering and while walking on the road, he fell on the embankment of the road and got suspended on that 11 embankment and then Ram Singh, his brother-in-law lifted and placed him on the concrete portion of the road. PW2 Dr. Jiwa Nand Chauhan had conducted the postmortem of the deceased. He noticed the multiple lacerated irregular wounds of size ½ x ½ cm x bone deep on occipital region all around with fresh bleeding. After removing the scalp, he noticed a big contusion in whole of the occipital region, left parietal and left temporal region. There was a big sub-dural haemotoma in whole of the occipital region. The said injuries were ante mortem in nature. In the opinion of the doctor, deceased died due to head injury within few minutes and the said injuries could be caused if a person is thrown with a force on the hard surface and also did not over rule the possibility of sustaining the said injury by a fall as stated in his cross-examination. He also did not find any injury on the chest and abdomen of the deceased. PW3 Dhani Devi, PW4 Nanak Chand, PW6 Kunta Devi, Khimi Devi, Hima and Ram Singh reached the spot on having been informed by PW1 aforesaid. Dhani Devi, the widow of the deceased stated 12 that appellant has been their neighbour and they had no dispute with him. PW14 Om Prakash SI/SHO did not request the doctor to preserve viscera for the chemical examination even in his application Ext. D1. He has admitted the existence of the retaining wall adjoining to the place of occurrence. However he has denied that Suvidha Devi had informed him that Mali Ram had fallen from the danga. On the close scrutiny of the above evidence, we find that the conduct of PW1 Ram Singh is not above board. He was the close relative of the deceased, he did not intervene when the appellant is alleged to have attacked the deceased. Neither had he informed the police and the police-station was merely 6 k.ms. far off from the spot, nor he provided any medical assistance but left the dead body of the deceased alone lying on the spot. The presence of Ram Singh on the spot at the arrival of police is also doubtful in view of the statement of SI Om Prakash (PW14). He has stated that when the police reached the spot PW1 Ram Singh was not found present. According to him, his statement under section 154 Cr.P.C. was recorded by the police at 9 p.m. when he returned after 13 informing the wife of the deceased. In view of these circumstances, his testimony stands corroded. Further, the viscera of the deceased was not sent by the police for chemical examination to know whether it contained alcohal to over-rule the possibility of drunkenness of the deceased as stated by Suvidha Devi. In absence of such examination, her testimony assumes importance. The cumulative effect of the infirmities noticed above goes to the root of the matter. In an almost similar situation, the Apex Court in State of Maharashtra vs. Raju Bhaskar Potphode [2007(3) Criminal Court cases 947 (S.C.)] has discarded the testimony of sole witness whose conduct was not found above board to convict the accused, who was accused of murder of one Sunil Gore by stabbing him with a knife. The another fact which makes the prosecution story doubtful, is that the police was informed by PW7 Bishan Dass, an Ex-Pradhan of the Panchayat, telephonically at 6.35 P.M. on 3.7.2003 that the dead body of Mali Ram was lying on the spot and requested the police to investigate the case. To this effect, the report Ex.PW10/A was recorded in the daily diary of the Police Station. He neither 14 named the accused nor apprised the police as to how it happened and who had informed him about the dead body. Om Prakash (PW14) thereafter reached the spot alongwith police bandobast and recorded the statement of PW-1 Ram Singh under Section 154 Cr.P.C. at 9.05 P.M. The distance of the spot from the Police Station is only 6 Kms. As is evident from the roznamcha entry Ex.PW10/A, the police party proceeded to the spot in the official vehicle immediately after recording the above information in the roznamcha at 6.35 P.M. The entry in column No.3 of the inquest report Ex.PW14/B, prepared by him had shown that police came to know about the death of Mali Ram about 7.45 P.M. on 3.7.2003. It was against this background, we thought it proper to re-examine Om Prakash aforesaid to clear this ambiguity. His statement was recorded on 14.5.2008 in the court by us. When confronted with the aforesaid situation, he stated that the information which was received telephonically at Police station and entered into the roznamcha, (Ex.PW10/A) was not authentic. It was only on reaching the spot at 7.15 P.M. that the aforesaid information was found to be correct and this was the reason why the time 15 of knowledge of death of Mali Ram was entered in the inquest report as 7.15 p.m. When he was further confronted with the entry with respect to the time of knowledge of death recorded as 7.45 P.M. in the inquest report, then he took another stand that he might have reached the spot at 7.45 P.M., as the vehicle had to be parked about ½ K.M. away from the spot due to the bad condition of the road due to rainy season as it had developed the pot-holes. Thus, he alongwith the police party had to walk on foot to reach the place of occurrence. According to him the delay in recording the statement of PW-1 Ram Singh under Section 154 Cr.P.C. was on account of the fact that Ram Singh was not found present on the spot as he had gone to call the wife of the deceased. Whereas Pw1 Ram Singh has given a contrary version that when the police had arrived on the spot he was present and his statement was recorded by the police. Both these statement are irreconcilable. Therefore, it can safely be presumed that the version of complainant Ram Singh was an after thought and made after due deliberations. For the aforesaid reasons, we have come to the conclusion that implicit reliance upon the 16 testimony of PW1 Ram Singh cannot be placed. The prosecution has failed to prove the offence charged against the appellant beyond a reasonable doubt. Thus the conviction and sentence passed by the learned trial court cannot be sustained. Accordingly we set-aside the impugned judgment of conviction and sentence and allow the appeal. The appellant stands acquitted of the charge by giving him the benefit of doubt. The appellant be set at liberty forthwith, if not required in any other case. The fine, if deposited be refunded to him forthwith. Send down the records. (Surjit Singh), Judge. (Surinder Singh), Judge. May 30th, 2008. (Pds)