IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No.: 423 of 1996. Decided on: 27.04.2010. __________________________________________________ State of Himachal Pradesh. … Appellant. Versus Roshan Lal. …Accused/Respondent. Coram The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 No. For the petitioner : Mr. Vivek Thakur, Additional Advocate General. For the Respondents : Mr. Arun Kumar, Advocate. Deepak Gupta, J (Oral). This appeal by the State is directed against the judgment dated 5.1.1996 delivered by the learned Additional Sessions Judge, Nahan in Sessions Trial No.15-N/7 of 1995 whereby accused has been acquitted of having committed an offence punishable under Sections 302, 323 and 506(II) of Indian Penal Code. 2. The prosecution story, in brief, is that accused Roshan Lal and deceased Balbir Singh were both residents of village Bakarla. The accused was running a thresher in the village at that time. According to the prosecution, Balbir Singh was a mason and at the relevant time was working in the house of his nephew, Kashmir Chand. The electricity 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. - 2 - went off in the village on 26.4.1995 at about 8.30 p.m. The accused suspected that the electricity has been switched off by Kashmir Chand. He, therefore, came towards the house of Kashmir Chand and started accusing him of having switched off the electricity. He then switched on his torch and fired a shot which hit Balbir Singh, who was standing adjacent to the kitchen of the wall of the house. The gun shot hit Balbir Singh on his chest. In the meantime, the electricity came back and the lights were switched on. Kashmir Chand, PW-19 saw the accused going towards his house with a gun in his hand and he chased the accused and caught him at a distance of about 40-45 feet from his house. However, the accused gave blow with the butt of the gun on the head of Kashmir Chand. PW-20, Gulab Devi, mother of Kashmir Chand also followed him, but she was also hit with the butt of the gun by the accused. According to the prosecution, Om Parkash and Bhagwati Devi have also witnessed the occurrence, but they have not been examined. 3. Thereafter Kashmir Chand went to village Khera and informed his father, PW-21 Prithi Singh about the occurrence. Then Prithi Singh came to village Bakarla and saw the injuries not only on the person of his brother Balbir Singh, but also, on the person of his wife Gulab Devi and son Kashmir Chand. He then went to village Surla and rang up to the Superintendent of Police, Nahan and informed him about the incident. Thereafter the Superintendent of Police, Nahan deputed PW-22, Jai Chand, who was at the relevant time Additional S.H.O., Police Station, Nahan to proceed to the spot. PW-22, Sub-Inspector, Jai Chand reached village Bakarla at about 11.00 P.M. He sent the injured persons to the - 3 - District Hospital, Nahan. He also sent a rukka to Police Station, Nahan for registration of the case. 4. During the course of investigation, the blood soaked soil was taken into possession. A shoe allegedly belonging to the accused, which he left behind when he was running away, was picked up by PW-19, Kashmir Chand and he produced the same to the police, which was also taken into possession. The statements of the witnesses were recorded and on the basis of these statements, the accused was arrested. The accused allegedly made a disclosure statement under Section 27 of the Indian Evidence Act and on the basis of this statement two guns, one torch, pieces of cloth and one shoe were recovered from the accused. The gun and the blood soaked soil together with cartridges were sent to the Chemical Examiner for analysis. 5. Balbir Singh was first taken to the hospital at Nahan. From there he was referred to P.G.I., Chandigarh. However, his family members instead of taking him to P.G.I., Chandigarh brought him back to village Bakarla where he expired on 2.5.1995. On the basis of the material gathered during the investigation, the accused was charged with having committed the offences of murdering the deceased and also causing injuries upon the persons of PW-19 Kashmir Chand and his mother PW- 20 Gulab Devi. The accused pleaded not guilty and claimed trial. After trial, he was acquitted. Hence, the present appeal. 6. The learned trial Court acquitted the accused mainly on the ground that the evidence of PW-19 Kashmir Chand and PW-20 Gulab Devi is untrustworthy and unreliable. The learned trial Court came to the conclusion that injured, Balbir Singh never saw the person who - 4 - assaulted him and in fact, the name of the accused did not figure in first report given to the police. He, therefore, took the view that the accused had been falsely implicated in the case. 7. Ex.P-P is the copy of report No.35 made in the daily diary at Police Station, Sadar, Nahan, recorded at 11.45 P.M. In this report, it is mentioned that the Superintendent of Police, Nahan had telephonically informed the police station that some person had been shot in village Surla-Bakarla and some Investigation Officer be sent to the said place in a police Gypsy. The name of the accused does not figure in this first report recorded by the police. 8. According to PW-21, Prithi Singh when he went to village Surla to ring-up the Superintendent of Police, he had informed the Superintendent of Police, Nahan that the accused had fired a shot at Balbir Singh. This, part of his testimony, is not supported by the documentary evidence on record, i.e. daily diary report referred to above. The Superintendent of Police, Nahan has not been examined by the prosecution. He was the best person to depose what exactly was stated to him by Prithi Singh. Admittedly, Prithi Singh had telephoned the Superintendent of Police after coming to the spot and after he had talked to his son, Kashmir Chand (PW-19) and his wife, Gulab Devi (PW- 20). If Kashmir Chand and Gulab Devi had been hit by the accused, as alleged by them, they would have obviously told Prithi Singh of the same, and Prithi Singh in his statement to the police could have definitely named the accused and stated that the accused had hit his wife and son. No doubt, Prithi Singh in his statement as PW-21 stated that he did name the accused. This part of his testimony cannot be - 5 - believed in view of the first report made to the police, referred to above and the fact that the Superintendent of Police has not been examined. 9. The finding of the learned trial Court that nobody could identify the person who fired a gun shot at the deceased is also supported by the evidence of Doctor G.K. Vashisth (PW-15). He treated the injured, Balbir Singh who was brought to him at about 4.45 A.M. on 27.4.1995, as is evident from the Medico Legal Certificate, Ex.P-T. He noticed gun shot wounds on the chest and abdomen of Balbir Singh. He also examined PW-19 Kashmir Chand and PW-20 Gulab Devi and found simple injuries on their persons. In the Medico Legal Certificate he has clearly stated that the injured Balbir Singh was responding to verbal questions. He, however, could not say whether the history of gun shot recorded in the M.L.C. was given by the injured himself or by the persons accompanying him. This witness stated that when the police brought Balbir Singh to him, they had given a letter to him for his examination, which has been exhibited as Ex.D-A. This letter is written by PW-22, Jai Chand and is addressed to the Medical Officer, District Hospital, Nahan. In this letter, it is written that at about 11.15 P.M. the Superintendent of Police, Nahan telephonically informed the police station that a telephonic information had been received from village Bakarla (Surla) to the effect that one person had been shot by some other person. Thereafter, on the orders of the Superintendent of Police, Jai Chand went to the spot, where he found Balbir Singh lying on the cot in an injured condition. He appeared to have suffered a gun shot wound. Gulab Devi and Kashmir Singh were also found injured and all the three persons were sent to the hospital for their medical examination. In this letter, there is no indication that any - 6 - person had informed PW-22 by that time that the injuries had been caused by the accused. 10. Doctor Vashisth also clearly stated that Balbir Singh was conscious at the relevant time. If the deceased was conscious and he was not in a critical condition, there is no explanation by the prosecution as to why his statement was not recorded under the supervision of a Doctor or a Magistrate, which if need arose later, could have been used as a dying declaration. The statement of Balbir Singh Ex.PX/3 recorded is under Section 161 Cr.P.C. We are dealing here with a case where the injured had suffered a gun shot wound on his chest and his condition was critical and, therefore, the complaint had been made straight way to the Superintendent of Police. In these circumstances, the Investigating Officer should have ensured that the statement of the injured was recorded before a Magistrate or at least by the Doctor. No reliance can be placed on the statement Ex.PX/3. 11. PW-1 is Hira Singh. According to him, at about 1.30 at night, Prithi Singh came to his house and requested that he should accompany injured Balbir Singh to Surla where the police had come. This witness clearly stated that Prithi Singh informed that Balbir Singh had been shot by some one. This someone was not identified. Despite making such a statement, this witness was never declared hostile by the prosecution. In cross-examination, he stated that when he went to village Bakarla, Balbir Singh was in his senses. When this witness enquired as to what happened, the injured told him that some one had fired a shot at him in the dark. A conjunct perusal of the statements leaves no manner of doubt that initially none had recognized the assailant. Balbir Singh, who - 7 - was in his senses at the relevant time told Hira Singh that he was fired at by some person from the dark. It is pertinent to mention that Balbir Singh is the brother of Prithi Singh and uncle of Kashmir Chand. It has come in the evidence that there are long-standing disputes between the parties. Therefore, the possibility of the accused being falsely implicated in this case cannot be ruled out. 12. According to the prosecution the very genesis of the dispute was that when the electricity went off, the thresher owned by the accused could not function and this made him very angry. It has come in the evidence of number of prosecution witnesses, and especially, PW-3, Man Singh that from 7.00 P.M. to 11.00 P.M. threshers are not allowed to run and at that time even the tube-lights do not give light because of low voltage. In such circumstances, the very basis of the story of the prosecution that the accused was angered because of the fact that his thresher could not run as the complainant party had switched off the electricity, does not hold water and is apparently false. 13. Another very important aspect of the matter is that though as per the story of the prosecution two guns were recovered from the possession of the accused, but the Ballistic report Ex.P-Z clearly indicates that the gun shot wound suffered by deceased Balbir Singh did not emanate from any of the two guns. The guns recovered at the instance of the accused have not been related to the commission of offence, and therefore, the disclosure statement alleged to have been made by the accused is meaningless. 14. In view of the above discussion, it is apparent that the prosecution has miserably failed to prove the case against the accused - 8 - and the learned trial Court was fully justified in acquitting the accused. We find no reason to interfere with the well reasoned judgment of the learned trial Court. There is no merit in this appeal and the same is accordingly dismissed. Bail bonds furnished by the accused-respondent stand discharged. (Deepak Gupta), Judge. (Rajiv Sharma), Judge. April 27, 2010. (sck).