IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No.268 of 1999 alongwith Cr.Appeal No.381 of 1999 Date of decision: 22.7.2010 Cr.Appeal No.268 of 1999 Babu Ram ..Appellant Versus State of H.P ..Respondent Cr.Appeal No.381 of 1999 State of H.P ..Appellant Versus Babu Ram ..Respondent Coram: The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr.Justice Sanjay Karol, J. Whether approved for reporting ? For the appellant: Sh.Dinesh Kumar Sharma, Advocate for the accused. For the respondent: Sh.Rajesh Mandhotra, Deputy Advocate General for the State. _____________________________________________________ Deepak Gupta, J, (Oral). The aforesaid two appeals are being disposed of by a common judgment since they both arise out of 2 one judgment dated 19.6.1999 passed by the learned Additional Sessions Judge, Solan in Sessions Trial No.6-S/7 of 1997 whereby he convicted the accused who was charged with having committed offences punishable under Sections 302/201 and 304 Part II of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for five years for having committed an offence punishable under Section 304 Part-II, IPC. The accused aggrieved by the said judgment has filed Criminal Appeal No.268 of 1999. The State has filed Criminal Appeal No.381 of 1999 praying that the accused be sentenced for having committed offences punishable under Section 302 read with Section 201 of the Indian Penal Code. The prosecution story, in brief, is that on 22.10.1996, PW/1 Hira Lal met Babu Ram. He told Babu Ram to come to Dol-Ke-Choe on the next day, i.e., 23.10.1996 since he was going to extract illicit liquor there. Next day, i.e., on 23.10.1996 Hira Lal started his work of distilling illicit liquor at Dol-Ke-Choe. Babu Ram, accused came there and after about half an hour, his brother 3 Roshan Lal (deceased) also came there. Roshan Lal and Babu Ram both consumed some of the illicitly distilled liquor. While they were having liquor the accused, Babu Ram allegedly told his brother Roshan Lal that he (Roshan Lal) had enticed the wife of Babu Ram and this rumor was being spread amongst the local villagers by Roshan Lal himself. Roshan Lal denied that he had either enticed the wife of Babu Ram or that he had made any such allegations. Thereafter, the accused Babu Ram caught hold of Roshan Lal and started slapping him. Hira Lal tried to intervene but the accused asked him not to intervene in a matter between two brothers. Then accused Babu Ram picked up a stone and started giving blows with it to Sh.Roshan Lal. Roshan Lal became unconscious and fell into a water spring and his body got submerged in the water. Thereafter, Hira Lal and Babu Ram went to their houses. On the way, Hira Lal met one Parkash and told him about the alleged occurrence. At about 2.30 p.m. Hira Lal was going to Malla Bazar for purchasing household articles. On the way, he found that the accused Babu Ram accompanied by Madan Lal, son of 4 the deceased was carrying the dead body of the deceased and taking it home. On enquiry, the accused informed Hira Lal that Roshan Lal had died. According to the prosecution, Hira Lal did nothing. Next day, i.e., on 24.10.1996 dead body of Roshan Lal was being taken for cremation to the cremation ground and at that time, police reached the spot, took into possession the dead body of Roshan Lal and sent it for post mortem examination. In the post mortem report, it was revealed that Roshan Lal had died due to a head injury. Thereafter, the matter was investigated and on the statement of Hira Lal, case against the accused was registered. In the FIR, Ext.PW1/A, it is alleged that Roshan Lal asked Babu Ram why he had enticed his wife. On the basis of the evidence, challan was filed against the accused who pleaded not guilty. The learned Trial Court came to the conclusion that the accused had no intention of murdering his brother but is a guilty of having committed an offence punishable under Section 304 Part- II, IPC and sentenced him to undergo rigorous imprisonment for five years. Hence the present appeals. 5 At the outset, we may notice that other than Hira Lal (PW/1), no other witness has supported the prosecution case. Hira Lal in his statement has stuck to his story that Babu Ram and Roshan Lal came to consume liquor at Dol-Ke-Choe where he was distilling illicit liquor. According to him, an altercation took place between the two brothers since Babu Ram was alleging that Roshan Lal had enticed his wife. Thereafter, the fight started. There is a material contradiction in the first statement recorded under Section 151, Cr.PC in which it was alleged that Roshan Lal had asked Babu Ram why he had enticed the wife of Roshan Lal whereas in Court, this witness stated that it was Babu Ram who alleged that Roshan Lal had enticed the wife of Babu Ram, accused. According to Hira Lal, since he was scared, he did not remove Roshan Lal from the water. He also did not try to find out whether Roshan Lal was dead or alive at that time. Thereafter, he (PW/1) and accused Babu Ram both returned to their respective homes and on the way, PW/1 met one Parkash and informed him about the alleged occurrence. Thereafter, Hira Lal went to his house alongwith Parkash. 6 Hira Lal gave one glass of liquor to Parkash who after consuming the same returned to his house. According to this witness, at about 2.30 p.m. when he was going to Malla Bazar to purchase some household articles, he met Ram Lal and Girdhari. When they reached near the water tank, they saw that Babu Ram was carrying Roshan Lal on his back and Madan Lal, son of the deceased was accompanying Babu Ram. This witness asked Babu Ram as to what had happened and then the accused replied that his brother, Roshan Lal had died. Hira Lal confirmed this fact by touching the hand of Hira Lal and found that it was cold. According to this witness, though PW/1 and other villagers were asked to collect firewood for the cremation, they refused to do so. The dead body of Roshan Lal was taken for cremation to the cremation ground on 24.10.1996. The question which arises is why would Hira Lal enquire from the accused Babu Ram as to what had happened if the fight between these two brothers took place and Roshan Lal was thrown into the water spring by Babu Ram, accused in his presence. PW/1 Hira Lal would 7 have only asked whether Roshan Lal was dead or alive because he knew what was the cause of occurrence. Another unnatural aspect of the case is that Hira Lal did not report the matter to the police even at that stage. Once he knew that Roshan Lal had died, he should have taken steps to report the matter to the police. According to him, Ram Lal and Girdhari were accompanying him when he met the accused and Madan Lal. Ram Lal and Girdhari were not examined and this shows that the statement of Hira Lal cannot be relied upon. If these two persons had been present and even if Hira Lal for some reason could not go to the police station, he would have informed them about the accused and they, in turn, would have gone to the police station to report the matter. According to PW/1, on 25.10.1996 he was called to the Police Station and his statement Ext.PW1/A was recorded. However, this statement is dated 26.10.1996. This shows that this witness is not telling the truth. 8 The learned Trial Court has not at all taken into consideration the statements of the other witnesses. PW/2 Smt.Premi Devi, widow of Roshan Lal turned hostile. According to her, her son, Ram Kishan (PW/4) told her that his father Roshan Lal (deceased) is lying in the Choi and thereafter she asked her elder son, Madan Lal (PW/3) to take his uncle, accused Babu Ram with him and go to the spot and bring Roshan Lal back home. Though this witness was declared hostile and was cross-examined at length by the prosecution, nothing material has been extracted in favour of the prosecution. PW/3 Madan Lal is the son of the deceased. According to him, when he reached home at about 2.30 p.m. on 23.10.1996, his mother informed him that his father is lying in the Choi. Thereafter, he alongwith the accused Babu Ram went to the Choi where they found that Roshan Lal was dead and then they brought back the dead body of Roshan Lal to their house. Thereafter, he went to inform his sister about the death of his father. This witness was also declared hostile and was cross examined but to no avail. 9 Ram Kishan, PW/4 is the younger son of the deceased. According to this witness, when he had gone to graze the cattle, he found that his father was lying in the water spring and he immediately went to inform his mother. This witness was also declared hostile and was cross examined but nothing material in favour of the prosecution has been extracted in his cross-examination. PW/5 Pushpa Devi is the daughter of the deceased. According to her, Madan Lal alongwith Parkash came to her house and informed her that her father was seriously ill. This witness was also declared hostile. PW/6, Parkash Singh, is the brother-in-law of the deceased but his statement is not very relevant. PW/7, Amar Singh is the son-in-law of the deceased and his statement is also not very relevant. PW/8, Dhani Ram who is a witness to the recovery of a stone turned hostile. Statement of PW/9 Paras Ram is only hearsay since he has no personal knowledge and only stated that Parkash Chand had told him that the deceased had been beaten up by the accused. 10 PW/10 and PW/11 took the photographs of the dead body of Roshan Lal and the place of the occurrence. PW/12 who is the President of Gram Panchayat, Pratha did not support the prosecution case and was declared hostile. PW/15 Dr.Anil Kumar carried out the post mortem of the dead body of the deceased and according to his opinion, deceased died due to head injury. PW/17 Manohar Lal is a witness to the disclosure statement leading to the recovery of the stone. The other witnesses are only official witnesses. From the oral evidence as well as the documentary evidence, especially from the report of the Chemical Examiner, it is obvious that the deceased had consumed a large amount of alcohol. The alcohol percentage in his blood was 477.0 milligram which is highly excessive. The conduct of Hira Lal, as observed above, has not been natural. The wife and sons of the deceased have not supported the prosecution case. In case the deceased had been murdered by the accused, we fail to understand why the wife and the children of the 11 deceased would speak in favour of the accused even if he was their uncle. The statement of Hira Lal does not inspire confidence. Admittedly, he has engaged in the trade of distilling illicit liquor. There are many contradictions in his statement. His behaviour was not normal. He did not report the matter to the Numberdar, to the Pradhan of the Gram Panchayat or to the police. His statement was recorded three days after the incident. There is no explanation why he kept quiet for three days. Therefore, the learned Trial Court gravely erred in relying upon the statement of this witness. In a criminal case, it is the duty of the prosecution to prove beyond reasonable doubt that the incident has occurred in the manner alleged by the prosecution. If there is the slightest doubt, the benefit has to be given to the accused. Here we are dealing with a case where none of the close family members of the deceased supported the prosecution version. Even from the medical evidence, it is not clear that the deceased died due to an injury caused with the stone. The medical evidence with regard to the injuries shows that there was 12 abrasion on the left arm on the anterior aspect and on the left leg of left thigh. No other external injury was found on the person of the deceased. According to PW/1, the accused had hit the deceased with the stone all over his body. If that had been true, there would have had a number of abrasions or marks of the stones on various parts of the body of the deceased but in fact only two external injuries have been found, i.e., one on the left arm and one on the left leg. Therefore, the medical evidence also does not support the prosecution. It is true that the deceased died due to a head injury but the possibility that the deceased suffered this injury when he fell since he had consumed an excessive amount of liquor cannot be ruled out. Even with regard to the recovery of the stone, assuming that this stone has been recovered, as stated by the two witnesses, there is nothing on record to prove that this stone is the weapon of offence. In fact, PW/1 Hira Lal stated that a stone was picked up by him and was shown to the police as being a stone similar in nature to the one used by the accused at the time of incident. No blood 13 was found on the stone. Hundreds and thousands of such stones would be found in a Khud (Kadu-wali-Choi). It cannot be said with certainty that this stone was used by the accused to kill the deceased. We, therefore, of the clear-cut view that the learned Trial Court gravely erred in convicting the accused even for the lesser offence. In view of the above discussion, the prosecution has miserably failed to connect the accused with the commission of any offence whatsoever. We accordingly acquit the accused and allow the appeal filed by him. Bail bonds, if any, furnished by the accused are ordered to be discharged. The appeal filed by the State is dismissed. Before parting with these appeals, we are constrained to observe that certain lines in the judgment of the learned Trial Court show total non-application of mind. In Para 31 of the judgment, the learned Trial Judge had noted the facts which according to him have been proved on record. We may not agree with some of the findings of the learned Trial Judge but that is of no consequence since every Judge has a right to give a 14 different finding even on the same evidence. However, there is one finding in the judgment given by the learned Trial Court which shows total non-application of mind. This finding reads as follows:- “31.(8) That the deceased died because of post operative complications.” We fail to understand how the learned Trial Judge gave this finding. It is nobody’s case that the deceased underwent any operation or that there were any post operative complications. Even as per the prosecution, the deceased had died before he would be given any medical aid. This portion of the judgment shows that the learned Trial Court did not examine the evidence in a manner expected from a Sessions Judge. The Registry is directed to send a copy of this judgment to the concerned Sessions Judge. The appeal is disposed of in the aforesaid terms. ( Deepak Gupta ) Judge July 22, 2010 (Sanjay Karol) (m) Judge 15