IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.: 615/1996 Reserved on: 22.4.2010 Decided on: 28.4. 2010 _____________________________________________ State of Himachal Pradesh. …Appellant. Versus Vijay Kumar and others. …Respondents. _______________________________________________________ Coram: Hon’ble Mr. Justice Deepak Gupta, Judge. Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. For the Appellant : Mr. Vivek Thakur, Additional Advocate General. For the Respondents : Pt. Om Parkash Sharma, Advocate. ____________________________________________________ Per Rajiv Sharma, J. State has filed this appeal against the judgment dated 1.6.1996 passed by the learned Sessions Judge, Hamirpur in Sessions Trial No. 2 of 1995, whereby respondents charged with and tried for offences punishable under sections 307, 147 and 149 of the Indian Penal Code, have been acquitted. Prosecution case, in a nutshell, is that a “Dham” was organized in village Balla. PW-11 Piar Chand was engaged as a photographer. Two of his film rolls were found stolen during day 1 Whether reporters of the local papers may be allowed to see the judgment? . No. 2 time. He inquired about it from accused Vijay Kumar. There was exchange of hot words between Vijay Kumar and Piar Chand at about 4.00 P.M. They were pacified by PW-10 Piaro Devi. Accused Vijay Kumar threatened to kill Piar Chand. One of the accused Rajinder Kumar entertained Piar Chand and others by serving liquor till 10/10.30 P.M at his house. Piar Chand left his house in the company of Rajinder Kumar. The moment they reached Khud (rivulet), remaining five accused arrived there from the side of a ‘Tahli’ tree. Accused Vijay caught hold of Piar Chand from the collor of his shirt and remarked that he would kill him. Accused Longa alias Swarup gave a blow with the stone on the head of Piar Chand. Accused Anup gave a danda blow on the shoulders. Accused Vijay Kumar gave a blow with slate on his lower jaw above the chin, face and back of his head. The other accused gave Piar Chand fist blows and kick blows. Piar Chand fell down and lost consciousness. He regained consciousness after four-five hours and went to the house of Salochana Devi. The house of Salochana Devi was at a distance of 50-60 yards from the place of incident. He was taken to Primary Health Centre, Sujanpur and thereafter he was referred to PGI, Chandigarh. He was discharged on 13.6.1996 from PGI, Chandigarh. He lost his seven teeth. Statement of PW-10 Piaro Devi was recorded under section 154 of the Code of Criminal Procedure, on the basis of which, FIR was registered. The Police investigated the matter and put up the challan against the accused persons. 3 After the closure of the prosecution evidence, accused persons were examined under section 313 of the Code of Criminal Procedure. Their defence is of complete denial. The learned trial court convicted accused Vijay Kumar under section 506 (II) of the Indian Penal Code and sentenced to him to pay a fine of Rs. 7,000/- and in default of payment of fine to undergo simple imprisonment for a period of one year. Vijay Kumar and other accused were acquitted for offences punishable under section 307, 147 and 149 of the Indian Penal Code. Mr. Vivek Thakur, learned Additional Advocate General has strenuously argued that the prosecution has proved its case against the respondents. Pt. Om Parkash Sharma has supported the judgment of the learned trial court. We have heard the learned counsel for the parties and perused the record carefully. What emerges from the facts enumerated hereinabove is that PW-11 Piar Chand was engaged as a photographer to cover marriage ceremony. He lost his two film rolls and he inquired from Vijay Kumar about those rolls. A scuffle took place between respondent Vijay Kumar and Piar Chand. They were separated by PW-10 Piaro Devi. Piar Chand went to attend party organized by one of the accused i.e. Rajinder Kumar at his house. The party went on till 10/10.30 P.M. Piar Chand PW-11 in the company of Rajinder Kumar left for his house. He was accosted by accused and was given beatings, as detailed hereinabove. He was rushed 4 to Primary Health Centre, Sujanpur and thereafter he was taken to PGI, Chandigarh and was discharged on 13.6.1994. Material witnesses examined by the prosecution to prove the case against the accused are PW-10 Piaro Devi, PW-4 Romesh Chand, PW-5 Raj Kumar, PW-11 Piar Chand and PW-16 Sinod Kumar. PW-10 Piaro Devi has given the sequence of events only upto 5.00 P.M. on 6.6.1994. She has deposed that marriage of Amar Singh son of Dulo Ram was being solemnized. The “Dham” ceremony was going on 6.6.1994. She was also present to attend the “Dham”. Her nephew Piar Chand was working as a photographer in the marriage. Accused Vijay Kumar was also present at the time of “Dham”. Piar Chand demanded his missing film rolls from accused Vijay Kumar. Vijay Kumar told him that he would supply the film rolls to him in the evening. Thereafter a quarrel started between Vijay Kumar and Piar Chand. Vijay Kumar threatened Piar Chand of serious consequences. She came back to her house. She came to know about the beatings given by the accused to Piar Chand only in the morning. PW-4 is Romesh Chand. He has deposed that he attended the “Dham” on 6.6.1994. Two film rolls of Piar Chand were stolen during day time. He was looking for them. He inquired from Vijay Kumar. There was a scuffle with Piar Chand. His mother Piaro Devi (PW-10) separated them. Accused Vijay Kumar threatened Piar Chand. He also took liquor outside the courtyard of the house of Rajinder Kumar in the evening. He also went inside the house and consumed liquor. He thereafter went 5 to sleep. He could not tell what happened thereafter. He only came to know about the incident from his grandmother. PW- 5 is Raj Kumar. He also attended the marriage of Amar Singh. He was also present at the time of “Dham” on 6.6.1994. He was declared hostile. PW-16 Sinod Kumar was associated by the police during investigation. PW-11 is Piar Chand. He deposed that he was engaged as a photographer of marriage ceremony. The marriage party went on 5.6.1994 to village Patlandar. The marriage party came back on 6.6.1994. He found his two film rolls missing. He inquired about the same from Vijay Kumar. Quarrel started between him and Vijay Kumar. He was separated by Piaro Devi, Kalyan Singh and PW-16 Sinod Kumar. Thereafter he went to the house of Rajinder Kumar and consumed liquor. Thereafter he started for his house. He was accompanied by accused Rajinder Kumar. He was attacked by accused. According to him, Vijay Kumar accused caught him from the collor of his shirt and accused Longa alias Swarup gave a blow of stone. Danda blow was also given on his shoulder by accused Anup. Vijay Kumar gave a blow with a slate on lower jaw above the chin and also gave stone blows on face and back of his head. The remaining accused gave beatings to him with fist blows and kicks. He lost his consciousness and regained the same after four-fiove hours and went to the house of Salochana Devi, which was at a distance of 50-60 yards. He was taken to Primary Health Centre, Sujanpur and thereafter to PGI, Chandigarh. 6 PW-16 is Sinod Kumar. He was also engaged as a photographer. He alongwith Piar Chand and Kalyan Singh accompanied the Barat. They came back on 6.6.1994. He has deposed that there was a quarrel between accused Vijay Kumar and Piar Chand. He alongwith Rajinder, Ramesh Chand, Kalyan Singh and Piar Chand went to the house of Rajinder. He did not consume any liquor. The other persons started taking liquor and he went out to sleep. He was told by respondent Rajinder that somebody has killed Piar Chand. He saw Piar Chand lying unconscious in a cot in front of the house of one lady whose name he could not recall. The house of that lady according to PW-16 was near the house of accused Rajinder. PW-4 Ramesh Chand and PW-10 Piaro Devi are closely related. The statement of PW-4 Ramesh Chand and PW-10 Piaro Devi are required to be scrutinized closely. PW-10 Piaro Devi has only deposed about the incident, which took place at 5.00 P.M. when quarrel took place between Piar Chand and Vijay Kumar. She is oblivious to what happened on the intervening night of 6/7.6.1994. PW-4 Ramesh Chand has only narrated the sequences upto evening when there was a quarrel between Piar Chand and Vijay Kumar. He has admitted that he went to the house of Rajinder Kumar, but after consuming liquor, he went out to sleep. PW-5 Raj Kumar was declared hostile. PW-16 Sinod Kumar has also repeated what has been stated by PW-4 Ramesh Chand and PW-10 Piaro Devi. According to him, a quarrel took place between Vijay Kumar and Piar Chand at 5.00 P.M. He 7 admitted that he had gone to the house of Rajinder Kumar, but did not consume liquor. He was told by accused Rajinder that somebody has killed Piar Chand. There is no independent witness to the incident except PW-11 Piar Chand, however, his statement has not been corroborated. He has deposed that he lost his consciousness when he was beaten up by the respondents and regained the same after four-five hours and went to the house of Salochana Devi. The house of Salochana was at a distance of 50-60 yards away from the spot of alleged incident. The prosecution has not examined Salochana Devi. She was a material witness. She was the first person whom Piar Chand met after the incident. Accordingly, in view of above discussion, the view taken by the learned trial court is supportable by the evidence and there is no perversity in the findings recorded by the trial court. Consequently, the appeal is dismissed. Bail bonds furnished by the respondents/accused stand cancelled. (Deepak Gupta), J. (Rajiv Sharma), J. 28.4. 2010 *awasthi*