1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 246 of 1993. Reserved on: 11.12. 2007 Date of decision: January 3, 2008 . ____________________________________________________________ State of H.P. ……..Appellant. Versus Madho Ram and another. ……..Respondents. Coram Hon’ble Mr. Justice Surjit Singh, J. Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? . For the appellant : Mr. D. S. Nainta, Deputy Advocate General. For respondents : Mr. K.C.Rana, Senior Advocate, with Mr. Rajesh Mandhotra, Advocate. ______________________________________________________________ Per Surinder Singh. J. The State has challenged in this Appeal, acquittal of the respondents, in case No.19/92 u/s 304, 341 read with section 34 of the Indian Penal Code passed by the trial court on 14.6.1993. The prosecution story, in brief, as made out from the prosecution evidence is that Kalyan Chand (deceased) was a motor-mechanic living with his family in village Ghartholi. On 19.4.1992, at about 5.30 p.m. while returning to his home from his work, near his house he was stopped by Madho Whether reporters of the Local papers are allowed to see the judgment? Yes. 2 Ram and Pawan Kumar respondents of his village. Madho Ram gave him a Danda blow and respondent Pawan is alleged to have hit him with stones. Kalyan Singh fell down, thereafter the respondent fled away. Indu Kumari (PW5) and Hari Singh (PW8) are alleged to have witnessed the alleged occurrence. PW 14 Julfi Ram, who was sleeping in his house, heard the cries of the mother of the respondents, he came out of his house and saw Madho Ram respondent running. Indu, had informed her aunt Simro Devi (PW8), she reached the spot and took the injured Kalyan Singh to her house with the help of Hari Singh. Julfi Ram brought the taxi and took the injured to Sub Divisional Hospital Baijnath where they reached about 7.30 p.m. Dr.B. Prehlad (PW1) medically examined Kalyan Singh and found the following injuries, as mentioned in MLC Ex.PA: 1. A lacerated wound-bone deep measuring 3 cm x 1 cm over the nasal region. The wound was bleeding. 2. A lacerated wound measuring 4 cm x 1 cm over the parietal region. The wound was bone deep and was bleeding. 3. A bruise reddish in colour measuring 12 cm x 1 cm with 3 intervening space of ¼ cm oblique over the middle of the back. Injured was advised x-ray for injury No.1 and 2. Injury No.3 was found simple. The injured was advised further treatment either at civil hospital Dharamshala or PGI Chandigarh. Doctor aforesaid had telephonically informed ASI Jodha Mall of Police Station Baijnath. The injured was not fit to make the statement. ASI visited the hospital and recorded the statement (Ex.PF) of Sneh Lata (PW9), wife of the deceased. On the basis of which FIR Ex.PN was recorded under sections 341, 323, 506, 307 read with Section 34 Indian Penal Code. Kalyan Singh injured was taken to Civil Hospital, Dharamshala but he died on the next day i.e. 20.4.1992. PW 21 Inspector/SHO prepared the inquest report Ex.PY. The autopsy of the dead body was conducted by PW4 Dr. R. K. Sharma on 20.4.1992. The post–mortem report is Ex.PE. The doctor had found the following injuries: a) 1.5” x1/2” size contused lacerated deep stitched and dressed wound at nasal bridge and nasion. b) Lacerated wound in left parietal region placed horizontally 2” x ½” 4 c) Oblique abrasion in the middle of back measuring 5” x ½” d) Imprint abrasion at the back of left shoulder measuring 6” x ½” with two parallel lines; e) Contused, lacerated, stitched wound in left occipital region measuring 1” x ½ “ in size; and Cranium and spinal cord: 2.5” linear crack in left parietal bone just below the contused lacerated wound of scalp with overlying haematemal (clotted), Membranes of brain were intact with subdural haematoma in left parietal region about 3” in size. Brain tissue underlying was congested with normal contour. Nasal bone was fractured in multiple 3-4 pieces and wound was going up to ethmeidal air sinus with blood clots. It was opined that the cause of death was fracture of nasal bone with deep injury of the area leading to massive hemorrhage and left 5 parietal bone fracture with intra - cerebral hemorrhage and shock. It was also opined that injury on the left shoulder and in the middle of the back, which was simple in nature, could be caused by Danda Ex.P-2. Except this injury others could be caused by stone like Ex.P-3. The case was converted under section 302 IPC. ASI Jodha Ram (PW20) arrested Pawan Kumar respondent on 20.4.1992, prepared the site plan Ex.PR, took blood stained earth from the place of occurrence vide memo Ex.PE. On 21.4.1992 respondent Madho Ram was arrested after when his anticipatory bail was rejected. Madho Ram made a disclosure statement Ex.PM on 23.4.92, in the presence of Prem Dass (PW15) and Manjit, pursuant to which he got recovered danda (stick) Ext.P-2 vide memo Ex.PH. Stones Ex.P-3 to P-5 were also taken into possession vide memo Ex.PG from the spot, on the same day in the presence of Madan Lal (PW10) and Prem Dass (PW15). After recording the statement of the witnesses, challan was presented in the court for trial under the aforesaid sections. Viscera of the deceased were sent for the examination of the Forensic Science Laboratory vide its report Ex. PZ it contained alcohol. 6 Finding a prima-facie case against the respondents, each of them was charge-sheeted under section 302, 341 read with section 34 of the Indian Penal Code. The respondents pleaded not guilty and claimed trial. At the end of the trial, the respondents were acquitted, precisely, on the grounds firstly, that the alleged eye witness (Indu), a child, (PW5) was found unreliable. Secondly, the another eye witness Hari Singh (PW6) was a close relative of the deceased, thus as interesting witness, his improved version in the court and his presence at the place of occurrence was held doubtful. Thirdly, writing Ex.PK given to Pradhan Madan Lal (PW11) was held to be a manipulated document. Fourthly, the Doctor (PW4) stated that injuries to the deceased could be caused due to fall and not by the stones Ex.P-3 to P-5. Fifthly, Prem Dass (PW15) admitted that the deceased was drunk, this fact was also noticed in the report of Forensic Science Laboratory Ex. PZ and, lastly, there has a delay in lodging the FIR, which further raises a doubt on the authenticity of the prosecution case. We have heard the learned counsel for the parties and gone through the record carefully. Prosecution has placed reliance on the alleged eye witnesses PW 5 Indu Kumari, PW6 Hari 7 Singh and on PW 14 Julfi Ram, who is alleged to have seen the respondent Madho Ram, running from the spot with a danda, besides other circumstances, which shall be discussed hereinafter. First of all, we shall take up the eye count of the witnesses, for that (PW5) Indu Kumari is aged about 7 years, and is the prime witness of the alleged occurrence. According to her, in the morning she was playing along with other children namely, Sonu, Krishna and Hari Singh, on the back side of her house. She saw the respondents beating the deceased. Then she stated that she returned from the school on that day, at 3.30 p.m. after it closed. She went to play, after taking the meals on her return from the School. The respondents gave beatings to her uncle Kalyan with a stick, which was in the hand of Madho Ram while respondent Pawan Kumar hit him with stones. Kalyan sustained injuries on his nose and forehead. The witness has further stated that on that day, soon after the incident, she informed her aunt Simri Devi, who was watching the Television. She came to the spot and brought Kalyan Singh to her house in the injured condition. On the very first blush her statement suffers from many contradictions. Firstly, that it 8 was admittedly Sunday on the alleged day of occurrence, therefore, there was no question of her attending the school on that day; secondly, according to her she was playing with her school mates in the back side of her house in the morning, whereas the alleged occurrence had taken place around 5.30 p.m. Thirdly, she has stated simultaneously that after taking meals, on her return from the school, she was playing with her school mates and her school had closed at 3 p.m.when she saw the alleged incident. Further, in her cross-examination she has admitted that it being, Sunday she was watching movie on the Television which started at 5 p.m. and that she had not seen the occurrence and came to know about it only from her mother. She has blown hot and cold in her statement and again reiterated that she had seen the respondents-accused giving beatings to her uncle and she was not watching the Television. She also deposed that they were at Dharamshala before recording of her statement and admitted that she had been told to make the statement as above, by her mother and other relatives, present in the court. Thus In view of these glaring contradictions and improvements, her testimony does not bear the stamp of naturalness and ring of 9 truth but it gives the impression that she is a tutored witness. Thus, no reliance can be put on her testimony. Another witness is PW6 Hari Singh. Kalyan Chand (deceased) was his real uncle PW5 Indu is his daughter. Therefore, his testimony requires a close scrutiny. According to him, at about 5.30 p.m. when he was returning from his work, just near his house, he saw respondent Madho Ram giving beatings to Kalyan with a stick and respondent-accused Pawan Kumar was hitting him with stones. He has stated that PW5 Indu Kumari was present there. She brought her aunt Smt. Simri Devi on the spot and whereas Indu (PW5) has not testified his presence. He further stated that he had inquired from the respondents about the cause of beatings to Kalyan Chand but they threatened him and then ran away. This witness was confronted with his statement Ex.DA, recorded under section 161 Cr.P.C with respect to presence of his daughter Indu (PW5) and informing her aunt Smt.Simri Devi as stated above, which did not mention there. It is a substantial improvement made during the trial. It is also surprising that being a close relative he did not intervene to rescue him. His explanation that there was hardly any occasion, to save the deceased as the fight 10 took place only for five minutes, he simply kept on watching, is totally against the normal and natural human conduct. He could have even raised the hue and cry and shout for help. Therefore, his testimony also does not inspire confidence. According to the prosecution case, Smt. Simri Devi had reached the spot and took injured to her house. At that time PW9 Smt.Snehlata was in her field, cutting the grass and she was informed by her nephew Vikram Singh, about the alleged incident. When she reached her home, her husband was lying on the bed with injuries on his head, forehead and nose. She reported the matter to the police. Vikram Singh (PW7) is the nephew of Hari Singh (PW), he had not seen Hari Singh on the spot though he is alleged to have seen Madho Ram running with a stick in his hand. Smt. Snehlata in her statement Ex.PA, made to the police, did not state that Vikram Singh had informed her that Modho Singh was also seen running by him. Therefore, in the aforesaid circumstances, presence of Hari Singh, as alleged eye witness of the occurrence and seeing Madho Ram by Vikram become doubtful. According to Vikram Singh (PW7), he had seen Simro Devi taking Kalyan Chand to her house but he did not see from which place he was 11 assisted. Julfi Ram (PW14) was in his house and according to him, he heard the cries of the mother of the accused saying “Mat Maro” and he also saw accused Madho Ram running with a stick bout did not see Pawan Kumar. Simro and Hari Singh brought Kalyan to their house but Vikram did not mention about Hari Singh. Further according to case of the prosecution mother of the accused was neither present on the spot nor she cried as stated by PW 14 above. In his cross-examination Vikram has admitted that the deceased was his first cousin, therefore, he has an urge to help the complainant. According to PW15 Prem Dass, he was sitting in his shop and at about 5.15 p.m. Kalyan Chand had come to his shop and kept on sitting for about fifteen minutes. After he (Kalyan Chand) left the place, respondent Pawan Kumar visited his shop at about 5 p.m. both statements are irreconcilable. If Kalyan Chand had left after respondent-accused Pawan Kumar had left the shop of Prem Dass (PW15) as stated by him, then where they had met and what could be the cause for Pawan Kumar to beat Kalyan Chand to death. Admittedly, Kalyan Chand was drunk on that day, as per the report of Forensic Science Laboratory and also as stated by Prem Dass. Doctor R.K.Sharma, has stated that if a person 12 under the influence of liquor fall on stony surface, injuries No.1 and 2 could be caused by a fall. Prem Dass (PW15) in his cross-examination has admitted that, where the alleged occurrence had taken place, village path was stony. According to the Doctor, the injuries found on the deceased could be result on account of fall on a stony surface, if the person is drunk. Since the respondents could not be connected with the crime, therefore, they cannot be held guilty. Further the prosecution has also relied upon the writing Ext PK. The perusal of this document shows that that the signatures of Pawan Kumar is very close to where the matter ends, which does not match with his another signatures just above his address. This gives the impression that his signatures were obtained on the blank paper and the matter was prepared subsequently. This writing was allegedly given by Pawan Kumar to Pw 11 Madan Lal Pradhan of his Panchayat. There is also nothing on record to show as to how the police came in its possession. This document on its very look appears to be a fudged document, which cannot be relied upon to prove the charge against the respondents. As far as recovery of danda (stick Ex.P- 1) from Madho Ram is concerned, he was arrested on 13 21.4.1992. He is alleged to have made a disclosure statement Ex.PM on 23.4.92 in the presence of Prem Dass (PW15) and Manjit Singh (not examined). Prem Dass has stated that respondent-accused had produced stick Ex.P2 to the police in his presence but did not say from where? He has further stated that Madho Ram had made a disclosure statement Ex.PM which was signed by him as witness, but in the cross-examination he stated that the police had asked respondent accused Madho Ram as to where was the stick which means that the police was already knowing about the stick. Thus in these circumstances, on the reappraisal of the evidence on record, the prosecution evidence does not inspire confidence rather it raises a grave doubt about the presence of the respondents at the alleged place of occurrence and having committed the offence in the manner alleged. By now, it is well established that suspicion however strong it may be it cannot take the place of truth. It is also equally settled that if the view taken by the trial court is borne out from the record, even if the other view is pointing out the guilt of the accused is also possible then the view favorable to the accused has to be preferred. 14 Therefore, in the aforesaid circumstances the acquittal of the respondents is upheld, as borne out from the record. Consequently the appeal is dismissed. (Surjit Singh),J. January 3,2008 (Surinder Singh),J. (D)