IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.410 of 1996. Dated of Decision: November 17, 2009. State of H.P. ……… Appellant. Versus Vikram Singh and another. ..…. Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?. For the Appellant : Mr. Ramesh Thakur, Asstt. Advocate General. For the Respondents : Mr. Shrawan Dogra, Advocate. Surjit Singh, J (oral): State has appealed against the judgment dated 12th October, 1995 of learned Additional Sessions Judge, Kangra at Dharamshala, whereby respondents Vikram Singh and Kartar Singh, who were charged with and tried for offences, under Section 302 of the Indian Penal Code and Section 25 of the Arms Act, have been acquitted. Case of the prosecution which led to the trial of the respondents may be stated. On 2nd January, 1994, respondent Vikram Singh went to the forest of his village Mawa, Mauja Manei, Tehsil and District Kangra, with a loaded gun of respondent Kartar Singh. It was a muzzle loading gun. Ahead of Vikram Singh, deceased Chatar Singh had also gone to the same forest with his Whether reporters of local papers may be allowed to see the judgment? 2 own gun. Apparently, both of them went for hunting. Vikram Singh was seen going the forest around 4 or 4.30 p.m. At 7 p.m., PW1 Mehar Singh heard a gunshot. He thought that the shot had been fired by respondent Vikram Singh, who he had seen earlier in the evening going towards forest with the gun of respondent Kartar Singh. After some time, a son and a daughter of deceased Chatar Singh visited the house of PW1 Mehar Singh and told him that their father Chatar Singh, who had gone to the forest, had not returned. Mehar Singh (PW1) then went to the house of respondent Kartar Singh to find out whether Vikram Singh, who had gone with his gun to the forest had returned or not. Kartar Singh told him that Vikram Singh had returned with the gun which was empty and after leaving the gun had gone away. The two, i.e. PW1 Mehar Singh and Kartar Singh, then went in the search of Chatar Singh to the forest alongwith some other residents of the village. They spotted the body of Chatar Singh in the forest. It had a gunshot injury near the left ear. The body was lying in a pool of blood. Next day, PW14 Kali Dass, S.I. the then SHO, Police Station Shahpur went to village Mawa in connection with the investigation of some other case, i.e. FIR No.111/93. There, PW1 Mehar Singh made a statement to him, under Section 154 Cr.P.C., record of which is Ex.PW1/A. It was sent to the Police Station, for formal registration of the case. PW14 SI Kali Dass then conducted inquest and prepared report Ex.PW3/C. The dead body was sent to the zonal hospital Dharamshala, where PW9 Dr. Naresh Gupta conducted the postmortem. He found 2 cm x 1 cm perforated wound 3 in the middle of left Pinna, on the back with inverted ragged margins and with averted ragged margins in the front. He also noticed a small laceration at the junction of the tragus and the lobule and cartilage of the Pinna and the wound site was fractured. Also there was perforation injury on the skull measuring 2 cm x 1 cm. It was oval shaped and 2 cm above and behind the left parietal eminence. Its margins were ragged. There was another penetrating wound on the brain 2 cm x 1 cm, corresponding in situation to the skull injury. On exploration of the brain, the wound was found in the mid brain and a metal pallet was embedded in the mid brain. As per opinion of the doctor, the cause of death was injury to vital centres in the brain and shock due to bleeding of cardio-pulmonary failure. Time lag between death and postmortem was opined to be within 24 hours. Both the respondents were arrested. It appears that they were released on bail on or around 8th January, 1994. After their release on bail, respondent Kartar Singh and several persons of the village went to the forest. A piece of a Chunni was found stuck to a Kamal tree with pellets piercing through that piece of cloth and bark of tree. One towel used by the deceased as head-gear was also found. One match box was also found near that tree. In one branch of the tree, at a height of 5 feet 7 inch, two pellets appeared to have made holes in some leaves. The aforesaid articles were taken into possession and given to PW1 Mehar Singh by the villagers. Same were taken into possession by the police on 6.4.1994. They were sent to the Ballistic Expert, who opined that holes in towel and piece of cloth and also the leaves of the Kamal 4 tree branch could have been made by the pellets of a gunshot. When the aforesaid articles were recovered, respondent Kartar Singh is alleged to have disclosed that the piece of cloth was part of the Chunni of his mother and it had been used as a wad for filling the gun powder and pellets in the muzzle of gun. Gun and the pellets recovered from the dead body were sent to the Ballistic Expert, who gave the opinion that the gun was capable of being fired through and the pellets could have been fired through the said gun. It was alleged that there was enmity between the deceased and respondent Vikram Singh on account of some dispute over a piece of land and that was the motive for the killing of the deceased by Vikram Singh. After obtaining sanction from the District Magistrate, under the provision of Arms Act, challan was prepared and filed. Learned Judicial Magistrate committed the case to the Sessions Court, after complying with the provision of Section 207 Cr.P.C. Respondent Vikram Singh was charged with offences under Section 302 of the Indian Penal Code and Section 25 of the Arms Act, while respondent Kartar Singh was charged with offence under Section 27 of the Arms Act. Prosecution examined a number of witnesses. It mainly relied upon the testimony of PW1 Mehar Singh, PW2 Satya Devi, PW4 Durga Dass and PW6 Rumal Singh, to connect the respondents with the killing of the deceased. It also relied upon the opinion of the Ballistic Expert Ex.PA and PB. The learned trial Court 5 did not believe the prosecution version and acquitted the respondents. We have gone through the record and heard the learned Assistant Advocate General and also the learned counsel for the respondents. Prosecution story that respondent Vikram Singh was seen going towards the forest with gun Ex.P1 of respondent Kartar Singh was sought to be proved by the prosecution, on the basis of testimony of PW1 Mehar Singh and PW2 Stya Devi, wife of the deceased Chatar Singh, both of whom testified that they saw respondent Vikram Singh going with the gun of respondent Kartar Singh towards the forest. Mehar Singh (PW1) is a brother of deceased Chatar Singh and Satya Devi (PW2) is his wife, but Mehar Singh is contradicted in almost all material particulars by his statement, recorded under Section 154 Cr.P.C. which is Ex.PW1/A, and was made to PW14 Kali Dass, S.I. on 3.1.1994. In the Court, he stated that when he was taking his meals at 7 p.m., he heard a gunshot and by the sound, he recognized that the shot had been fired through the gun of Kartar Singh. He did not state this fact while making statement, under Section 154 Cr.P.C. Ex.PW1/A. Again, in the Court he stated that the gun was loaded by respondent Kartar Singh in his presence and handed over to respondent Vikram Singh. This fact also does not find mention in his statement Ex.PW1/A. In the Court, he stated that when he went to the house of Kartar Singh on coming to know that Chatar Singh had not returned, he smelt the barrel of the gun and 6 felt the odour of gun powder, indicative of the fact that it had been fired through, recently. This fact also does not find mention in his statement under Section 154 Cr.P.C. or in supplementary statement Ex.DA, which he made later on. His statement that he went to the house of Kartar Singh to find out if Vikram respondent had returned from the forest or not, is rendered highly doubtful by the testimony of PW2 Satya Devi, wife of the deceased, who stated that she sent her children, direct to the house of respondent to enquire if Vikram had returned or not and that when her children, on return, told her that Vikram had returned and delivered the empty gun to respondent Kartar Singh, she sent her children to PW1 Mehar Singh to apprise him of the situation. Prosecution did not examine any other witness to prove its version that respondent Vikram Singh was seen going towards forest in the evening of 2.1.1994 with the gun of respondent Kartar Singh. Prosecution story that on 8th January, 1994, a piece of Dupatta stuck to a Kamal tree was recovered from the forest and that that piece of Dupatta was claimed by respondent Kartar Singh to be from the Chunni of his mother, which he had used to force gun powder and pellets into the muzzle of the gun also does not inspire confidence. This piece of cloth alongwith the other articles allegedly recovered from the spot on 8.1.1994 in the presence of respondent Kartar Singh was handed over to the police on 6.4.1994, vide memo Ex.PW1/B. Explanation offered by the witnesses for non-handing over these articles alongwith Dupatta Ex.P4 to the police immediately after their alleged recovery is contradictory. According 7 to PW1 Mehar Singh, the articles were sought to be handed over to PW14 SI Kali Dass 15 to 20 days after their recovery, but he put off saying that he would take the same from him on his visit to the spot. He is contradicted by PW4 Shri Durga Dass, another brother of the deceased, who stated that when the articles were taken to the Police Station, for being handed over to the police, Kali Dass, SHO refused to accept the same. Kali Dass, while in the witness box, denied that the aforesaid articles, including a piece of Chunni Ex.P4, were offered to him and he refused to accept the same. In any case, there is no explanation why the articles were sought to be handed over to S.I. Kali Dass after 15 to 20 days of recovery, as testified by PW1 Mehar Singh. It appears that the story regarding recovery of piece of Chunni was introduced only after the receipt of report Ex.PB of Ballistic Expert, which is dated 25.2.1994, because the report does not categorically say that the pellets recovered from the dead body had been fired through the gun, but simply reads that same could have been fired through gun Ex.P1, belonging to respondent Kartar Singh. It appears that an attempt was made to connect the gun with the fatal injury, sustained by the deceased, by reference to the piece of cloth, used as wad for loading the gun. In any case, prosecution did not lead any evidence that the piece of cloth, was in fact part of any Chunni of the mother of respondent Kartar Singh, though it could have very easily proved the fact by producing the Chunni of mother of respondent Kartar Singh from which the piece had allegedly been torn. Otherwise also, the shot as per prosecution’s own evidence 8 had been fired from a distance of 70 yards. It is not possible that the piece of a Chunni used as wad could have hit a Kamal tree at a distance of 70 yards. It could not have gone such a long distance. In view of the above stated position, we see no merits in the appeal. Therefore, it is dismissed. (Surjit Singh) Judge November 17, 2009. (Surinder Singh) (Pds) Judge.