HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No. : 35 of 1995 Reserved on: 13.3.2009 Decided on: 20.3.2009 State of Himachal Pradesh ……… Appellant. Versus Ranbir Singh ………Respondent. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the Appellant: Mr. Rajesh Mandhotra, Deputy Advocate General. For the respondent: Mr.V.B. Aggarwal and Mr.Lovneesh Kanwar, Advocates. Per V.K. Ahuja, J.: This is an appeal filed by the State of H.P. under Section 378 Cr.P.C. against the judgment, dated 10.2.1994, of the court of ld. Sessions Judge, Una, vide which the respondent was acquitted of the charge framed against him under Section 302 IPC. The prosecution story in brief is that on 12.4.1992, at about 1.30 a.m., a statement was made to the Police Officer under Section 154 of the Cr.P.C. by one Sham Lal in which he alleged that Shamsher Singh is his cousin. On 10.4.1992, at about 6.00 p.m., when the complainant Sham Lal was sitting at his shop and Joginder Singh, Pawan Kumar and Rattan Chand were also sitting ___________________________________________ Whether reporters of local newspapers may be allowed to see the judgment? Yes. there, Shamsher Singh and one Bakhshish Singh came to his shop and the clothes of Shamsher Singh were stained with blood and blood was also oozing out of his head. He enquired from Shamsher Singh as to what had happened, who told him that he had put fencing to his fields, which was being removed by respondent and when he prevented him, the respondent dragged him to the street, gave him beatings and when he raised an alarm, Kishan and Swarni rescued him. He further alleged that Ranbir Singh, while leaving, had given a threat to Shamsher Singh that he will kill him. Further, Shamsher Singh told him that when he came back to his house, the respondent again quarreled with him and gave beatings on his head with a drat. The complainant further alleged that these facts were told by Shamsher Singh to him in the presence of the above named persons. He was taking Shamsher Singh to the Hospital for treatment and on way Shamsher Singh told him that he is a poor person and has no money for treatment or for fighting out the case and he will accept the verdict of the Panchayat in this regard. Thereafter, he alongwith Shamsher Singh went to the house of Dilbagh Singh, Pradhan, who was not available at that time and he came back to his shop while Shamsher Singh went to his house. It was further alleged that on 11.4.1992 at about 6.00 p.m., brother of Shamsher Singh, namely, Ram Swaroop came to his shop who was serving at Ludhiana and he told all the facts to him. When they returned back to their house, they were informed by the Panchayat that there is a sitting of the Panchayat and he had been called. He reached that place alongwith Ram Swaroop and he was told by the Pradhan that Shamsher Singh was lying unconscious near the puli and they arranged for a cot and they were taking Shamsher Singh in a unconscious state for treatment, who died on way. On this rapat, a case was registered and after investigation, the challan was filed before the learned Judicial Magistrate, who committed the case to the court of learned Sessions Judge, who tried the respondent for the offence under Section 302 IPC leading to his acquittal. We have heard the learned Deputy Advocate General for the State and the learned counsel for the respondent and we have also gone through the record of the case. The submissions made by the learned Deputy Advocate General for the appellant were that the fact that the injury was given on the person of Shamsher Singh, now deceased, has been clearly stated by the complainant Sham Lal and he learnt these facts in presence of three other persons sitting in his shop. It was further submitted that the prosecution had proved their case and as such the findings of the learned trial Court to the contrary are not sustainable in the eyes of law. On the other hand, the learned counsel for the respondent had supported the impugned judgment for the reasons given therein, supplementing it by the submission that the statement of Sham Lal was a hearsay evidence and does not find corroboration from the other persons present at that time. He further stated that there are many infirmities in the prosecution case which have not been explained by the prosecution and as such, there is no merit in the appeal, which deserves to be dismissed accordingly. The evidence led by the prosecution shall be appreciated in the light of submissions made and the infirmities pointed out during the course of arguments. It is clear from the perusal of the evidence that there is no direct evidence and the case only rests upon circumstantial evidence. The first circumstance pointed out was that Shamsher Singh, now deceased, had come to the shop of his cousin Sham Lal, complainant, and had told him the fact that he had been given blows on his person by the respondent and thereafter, a drat blow was also given by the respondent on his person at his house. There were three witnesses to these facts having been disclosed by the deceased apart from Sham Lal, before whom these facts were told by the deceased to the complainant. The said Sham Lal has been examined by the prosecution as PW-1 and when he appeared in the witness box, he has stated that Shamsher Singh was having an injury on his head and was crying in pain and was shouting. He stated that he was told by Shamsher Singh that he has been hit with a drat and that there has been a quarrel in between him and the respondent. He nowhere stated that firstly the injuries were inflicted near the fencing and then with a drat on the head in the house of the deceased. He further stated that he was told that he was rescued by one Sawaran Singh. The four witnesses named by the complainant who were also present when the deceased told them about the occurrence were namely Joginder Singh, Pawan Kumar, Rattan Chand and Bakhshish Singh. Out of these four persons, the prosecution has examined Bakhshish Singh as PW-6, who simply stated that he saw Shamsher Singh, deceased, going on the path in drunken condition having a slight injury on his head and blood was oozing out from it. He did not ask him as to what had happened. The other witness Rattan Chand was examined as PW-5, who has also stated that he was sitting at the shop of PW-1 Sham Lal and Shamsher Singh asked Sham Lal to get his injury bandaged and thereafter Shamsher Singh and Sham Lal left that place and went towards Haroli. He further stated that Sham Lal had not asked him anything and Shamsher Singh did not tell anything about the injury, who was under the influence of liquor. Both these witnesses turned hostile and did not support the statement of PW-1 Sham Lal and one of them, namely, PW-6 Bakhshish Singh has not stated that the deceased ever came to the shop of Sham Lal or told anything. The other witnesses were not examined by the prosecution. The complainant PW-1 Sham Singh is, admittedly, the cousin of the deceased and has admitted his some enmity with the respondent and, therefore, his solitary statement not supported by any of the witnesses present at that time in regard to the fact as to who gave injury to the deceased cannot be relied upon in the absence of corroboration. They are not witnesses of occurrence, but only of the fact as to what was told to Sham Lal about the injury by the deceased. Apart from the above, the prosecution had examined PW-7 Kishan Singh, who has stated that he saw Shamsher Singh, deceased, abusing the respondent under the influence of liquor, but he does not know why he was abusing him. He and Swarna went to them, separated them and he did not see anything in the hands of the respondent or any injury having been inflicted by the respondent on the person of the deceased. He admitted in cross examination that the deceased was a man of quarrelsome nature, who used to quarrel with the villagers in drunken condition, which fact was also admitted by PW-8 Usha Rani, wife of the deceased Shamsher Singh. She rather came up with the plea that there was no fence around their field and there was no dispute. She stated that the deceased used to beat her under the influence of liquor. In cross examination she admitted the suggestion that the respondent had grappled with her husband and had beaten him but did not state anything further. She admitted that the respondent had no dispute with the deceased nor they ever quarreled about any fence. She rather admitted the suggestion that the deceased was brought home in an injured condition after having fallen somewhere under the influence of liquor. Coming to the infirmities in the prosecution case, the learned trial Court had rightly observed that the conduct of PW-1 Sham Lal, cousin of the deceased, cannot be such as he has not behaved in the manner in which a normal person will behave. He was taking the deceased for treatment to Haroli and at some distance there is a government hospital, as has come up in the evidence, but since the deceased had stated that he has no money or that he is poor to fight the case, he left him on the way after reaching the house of the Pradhan and came back without insisting that the deceased should get himself treated for the injury on his person. The learned trial Court has rightly observed that the treatment at government hospital was free and as such PW-1 Sham Lal was required to have taken his cousin to the hospital, but he came back, which casts a doubt about his statement whether it should be relied upon or not. The Medical Officer, for the reasons best known to him, has not been able to fix up the duration of the injury when he appeared in the witness box as PW-16, though the Medical Officer only can be said to be an expert and he should have fixed up the duration of the injury so that it could be linked with the period when the deceased is alleged to have received the same. The Medical Officer as PW-16 also admitted that this injury was possible by fall and also admitted that the injured can become unconscious immediately or after some time. Therefore, the medical evidence also does not support the ocular evidence whatever has been led by the prosecution. PW-1 Sham Lal has stated that he cannot state about the time when Shamsher Singh had received the injury on his head. He also admitted that the Police Post, Haroli was 2 kms. away from his shop and was also situated on the main road and taxies are easily available but no reasons have been given by him as to why he did not lodge the report immediately when he learnt about the occurrence on 10.4.1992 at 6.00 p.m. and he made the statement only on 12.4.1992 at 1.30 a.m. when the Police Officer met him after the deceased had already died. Therefore, the delay in question in lodging the report also raises doubts about the prosecution story. There is no evidence led on record to substantiate the case of the prosecution and the findings of the learned trial Court holding that the prosecution had failed to prove their case beyond any reasonable doubt cannot be termed as perverse calling for an interference by this Court. In view of the above discussion, we hold that there is no merit in the appeal filed by the State of H.P., which is dismissed accordingly. The bail bonds furnished by the respondent shall stand discharged. (Deepak Gupta), Judge. March 20, 2009. (V.K. Ahuja), (TILAK) Judge