IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 80 of 1995 Date of decision: 11.05.2009 State of H.P. …. Appellant. Vs. Nirmu and another ... Respondents. Coram The Hon’ble Mr.Justice Deepak Gupta, J. The Hon’ble Mr. Justice V.K.Ahuja. Whether approved for reporting?1. No. For the appellant: Mr. Rajesh Mandhotra, Deputy Advocate General. For the respondents No. 1: Mr. G.D.Verma, Sr. Advocate with Mr. Romesh Verma, Advocate. Per Deepak Gupta, J. This appeal by the State is directed against the judgement of learned Sessions Judge, Shimla, dated 3.3.1994 whereby he acquitted the accused of having committed offences punishable under Section 304 read with Section 34 IPC. The prosecution case, in brief, is that on 5.3.1992 a Shivratri fair was being celebrated in village Chanohat. Chet Ram consumed liquor in his house. Then he went to the house of accused Nirmu. Apart from Nirmu and Chet Ram, 6-7 other persons were sitting in the house. All of them consumed more liquor. Thereafter Chet Ram came out from the room on to the Verandah. The prosecution alleges that then Nirmu and Sadhu Ram quarrelled with Chet Ram causing injuries to him. Then they pushed Chet Ram from the Verandah. Resultantly, Chet Ram fell on the stony surface of the Khalyan (place for threshing of wheat, etc.). He suffered injuries on his face and forehead. Raipu, brother of Chet Ram, immediately came to the spot. He then reported the matter to the police. The police reached the spot and took Chet 1 Whether the reporters of the local papers may be allowed to see the Judgment. Yes. 2 Ram to hospital at Sandasu. From there he was referred to the Civil Hospital, Rohru and from there to Deen Dayal Hospital, Shimla. From Deen Dayal Hospital he was referred to IG.M.C. Shimla. The deceased was discharged from I.G.M.C.Shimla on 14.3.1992 and expired at his home on 11.4.1992. On these allegations the case was lodged. The accused were summoned. After trial, they have been acquitted. Hence, the present appeal. It is not disputed that Chet Ram had consumed excessive amount of liquor. All the injuries found on the deceased Chet Ram were on the front of his body. There was no injury on any other part of the body. The doctor has clearly stated that if the deceased had fallen due to intoxication the said injuries were possible. The prosecution witnesses have not supported the prosecution case at all. PW-2 Raipu has stated that when he reached the spot Chet Ram had already fallen down and was lying flat on his front side. He states that he had lodged the report only on the basis of suspicion. PW-3, Nesar Mani, has also deposed that immediately after the accident she was told by all persons present at the spot that Chet Ram had died due to an accidental fall. PW-5, Modha Devi, wife of the deceased, has also not supported the prosecution case. According to her, her husband died due to a fall as he had consumed excessive liquor and nobody is involved in his death. Keeping in view the aforesaid statements, it is clear that there is no evidence what-so-ever to show that the accused had beaten the deceased. The only material which is in favour of the prosecution is the so called statement of Chet Ram recorded at I.G.M.C., Shimla, on 10.3.1992. No reliance can be placed on his statement since this statement cannot be termed to be a dying declaration. There is 3 nothing on record to show that at the time when the statement was recorded the injured was declared to be fit by the doctor to make the statement. In fact there is nothing to show that the statement was recorded in the presence of the doctor. This statement Ext. PW-13/B purports to be a statement under Section 161 Cr.P.C. If it was a statement under Section 161 Cr.P.C. there was no need to obtain the thumb impression of Chet Ram. The thumb impressions on the statement have not been proved to be those of Chet Ram. There is no witness to the statement. It is only the I.O who has stated that he recorded this statement. No reliance what-so-ever can be placed on this statement which appears to be a fabricated document. In view of the above discussion, we find no merit in the appeal, which is accordingly dismissed. Bail bonds, if any, furnished by the accused are ordered to be discharged. (Deepak Gupta), J. May 11, 2009. ( V.K.Ahuja ), J. ™