IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr. Appeal No. 279 of 1997 Date of Decision : September 17, 2010 State of H.P. …Appellant. Versus: Galo Ram …Respondent Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant: Mr. Rajesh Mandhotra, Dy. A.G. For the respondent : Mr. R. K. Gautam, Sr. Advocate with Mr. Vikrant Chandel, Advocate Deepak Gupta, J. (Oral). This appeal by the State is directed against the judgment dated 30.11.1995 delivered by the learned Sessions Judge, Chamba, in Sessions Case No. 4 of 1995, whereby the accused was acquitted of having committed an offence punishable under Section 304 Part-I of the Indian Penal Code. 2. On 18.9.1993, statement of Smt. Leela wife of Sh. Dhyan Chand was recorded under Section 154 Cr.PC which forms the basis of this case. In this statement Leela had stated that on 17.9.1993 at about 2.30 a.m., she heard some noise 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes 2 and went outside her house. She saw that Tilak, son of Teko and accused Galo Ram, son of Paras Ram were scuffling with each other in the Verandah of the house of Galo Ram. She tried to separate the two of them but was not successful. She then woke up Ratto who is her neighbour. In the meantime, accused Galo Ram had pushed Tilak on the ground. Tilak was desperately trying to escape from the clutches of the accused. She and Ratto managed to separate the accused and Tilak with great difficulty. Later she came to know that Galo Ram, Tilak (deceased), Ratto and Faini had consumed liquor in the house of Galo Ram. Thereafter, Ratto and Faini went to their respective houses and Tilak and Galo Ram started talking with each other. Both were totally drunk. Then Tilak (deceased) in a state of intoxication left for his own house but kept on abusing the accused. On hearing abuses Galo Ram rushed behind Tilak and caught him and pulled him back into the verandah and pushed him on to the ground and started beating Tilak. Then she and Ratto with great difficulty managed to separate the two. 3. The accident took place on 17.9.1993 and the statement of Smt. Leela under Section 154 Cr.PC was recorded on 18.9.1993. Tilak was taken to the hospital in an injured condition and it was found that he had sustained fracture of the skull. The X-ray was conducted on 25.9.1993. PW-2 Dr. Jaswant Singh states that on 16.9.1993 at about 10 a.m., he examined Tilak son of Sh. Tek Chand on the request of the police which was 3 received later at 12.45 p.m. on 17.9.1993. He issued MLC (Ext.PB) which is dated 16.9.1993 at 10.00 a.m. He suggested that the X-ray of the skull be got done and a reference for getting X-ray was made on the same date. Report of the Radiologist (PW-1) is dated 25.9.1993 and according to this report fracture was found of the skull. Deceased Tilak expired on 3.10.1993 at 2.00 a.m. and post mortem of his body was conducted on 3.10.1993 at 3.45 p.m. PW-5 Dr. Parveen Bhardwaj, who conducted the post mortem opined that the cause of death was head injury and this injury is possible in case a person falls from a height of 3 to 4 feet. 4. Most important witnesses in this case were Leela, Ratto and Faini. As per material on record, it appears that Leela died before the evidence of the prosecution witnesses was recorded. That leaves us only with her statement recorded under Section 154 Cr.PC which has been quoted by us in extensio. A perusal of this statement shows that all she saw was the accused and the deceased grappling with each other in a totally drunken state. She states that the deceased had been pinned down by the accused. Rest of her statement is totally hearsay, because according to her she later learnt from some other persons how the quarrel had taken place. She was not an eye witness to that portion and, therefore, her statement cannot be read against the accused. Also there is nothing to show that what was the cause of the fight and that the fist blow could have caused the fracture 4 of the skull. In her statement made to the police she has not stated that she saw the accused causing any such injury on the head which could have fractured the skull. 5. Even if the story of the prosecution version is to be believed, it is obvious that the deceased, accused, Ratto and Faini had all consumed a lot of liquor. What was the cause of altercation is not known. Why and how the altercation took place is not explained. Most importantly neither Faini nor Ratto have been examined and have been given-up as having been won over. They were the only witnesses prior to the occurrence, who could have deposed about what happened at the spot. Since Leela had expired and Faini and Ratto have been given up there is no evidence whatsoever to come to the conclusion that the accused caused the death of the deceased. 6. Another important aspect is that according to Leela the occurrence took place in the early hours of the morning of 17.9.1993. She states that the occurrence took place at 2.30 a.m. on 17.9.1993. According to PW-2 Dr. Jaswant Singh, he examined Tilak at 10.00 a.m. on 16.9.1993. Statement of Leela was recorded by the police on 18.9.1993 at 3.15 p.m. and after the injured had already been examined and it is more than apparent that this statement was recorded after the police had taken the injured Tilak to the hospital. Reference for conducting X-ray of Tilak was also made on 16.9.1993. Therefore, there is a glaring contradiction between the statement of Leela which could 5 have only been explained by her. This contradiction is whether the occurrence took place in the early hours of the morning of 16.9.1993 or 17.9.1993. 7. In view of the above discussion, we find no merit in the appeal which is accordingly dismissed. The bail bonds are discharged. ( Deepak Gupta ) Judge. ( Sanjay Karol ), Judge. September 17, 2010. (rana)