IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No.46 of 2008 Date of decision : June 1, 2009 Paljor Gyaso alias Tashi Laddo Mathro …Appellant. Versus State of Himachal Pradesh and others …Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1. Yes For the appellant : Mr. Ashok Sharma, Advocate. For the Respondents : Mr. Ramesh Thakur, Advocate General for respondent No.1. Mr. Rakesh Jaswal, Advocate for respondents No. 2 and 3. Surjit Singh, Judge (Oral) Appellant Paljor Gyaso alias Tashi Laddo Mathro has appealed against the judgment dated 25.7.2007 of learned Additional Sessions Judge, Fast Track Court, Dharamsala, whereby he has been convicted of offence, under Section 307 IPC and sentenced to undergo simple imprisonment for five years and to pay a fine of Rs.10,000/-; in default of payment of fine to undergo simple imprisonment for a further period of one year. 2. Allegations on which the appellant was charged with and tried for the aforesaid offence may be summed up thus. On 29.9.2005 around 10.30 PM, injured Vishal Singh alias Goldi (PW-10), accompanied by his friend PW-11 Pankaj, left Dharamsala by a Tata Sumo vehicle for his native village, named Chauntra. On the way, the vehicle was stopped at a place called Sungal for taking tea. Three Whether reporters of the local papers may be allowed to see the judgment? …2… persons, including the appellant, were already present at the tea stall. Two others were Ankush Sharma and Ravinder Kumar, hereinafter called accomplices of the appellant. When the vehicle stopped at the tea stall, Ankush Sharma, an accomplice of the appellant, allegedly asked PW-10 Vishal Singh @ Goldi to have drinks with him. PW-10 Vishal Singh @ Goldi was not interested in taking liquor and, so, he refused. Upon that Ankush Sharma allegedly started scuffling with Vishal Singh @ Goldi. His friend Ravinder Kumar, another accomplice of the appellant and the appellant then started giving beating to Vishal Singh @ Goldi. One of them stabbed Vishal Singh @ Goldi with a Khukhri. These are the facts recorded in the FIR, which was lodged immediately after the occurrence, by PW-11 Pankaj, a friend of PW-10 Vishal Singh @ Goldi. 3. Injured Vishal Singh @ Goldi was shifted to hospital at Baijnath from where he was referred to District Hospital, Dharamsala. He was medically examined and the doctor found a stab injury on the left side of the abdomen (para umbilical) region 2 ½ cms x 1 cm. Depth of the wound could not be measured due to massive bleeding. Omentum had come out through the wound. Excessive bleeding was there. Injury was opined to be dangerous to life and appeared to have been caused with a sharp edged weapon, per statement of PW-1 Dr. Ramesh Kumar, who attended upon the injured at Baijnath hospital. Injured was again examined at Dharamsala hospital, by PW-4 Dr. Atul Mahajan, who noticed a penetrating wound on the abdomen (left umbilical region) going into the peritoneal cavity, resulting in two perforations of small gut. The doctor also noticed another perforation of small gut and laceration of the omentum. For closing perforations …3… emergency surgery was conducted. Injured remained admitted in the hospital from 30th September, 2005 to 7th October, 2005. 4. Statement of injured was recorded on 3rd October, 2005. He was shown a photograph of the present appellant, on seeing which he told that the man in the photograph was the person, who inflicted the stab wound, by means of a Khukhri. Thereafter, present appellant was arrested. He allegedly made a disclosure statement leading to the discovery of a Khukhri. 5. Trial Court held the appellant guilty of the offence and convicted and sentenced him, as aforesaid. His two accomplices, named above, have been acquitted. 6. I have heard the learned counsel for the appellant as also the learned Assistant Advocate General and perused the record. 7. On reappraisal of the evidence, adduced during the trial, it is clear that the genesis of the alleged crime, as reported to the police, soon after the occurrence, is different from the genesis testified by PW-10 Vishal Singh @ Goldi (the injured) and the sole independent eye witness, namely PW-11 Pankaj, in the Court. In the FIR Ext.PW7/A, lodged by PW-11 Pankaj, it was got recorded that when Ankush Sharma, one of the accomplices of the appellant, asked PW-10 Vishal Singh @ Goldi to join him for a drinking bout and when he (Vishal Singh @ Goldi) refused, the quarrel took place. However, during the course of trial, both PW-10 Vishal Singh @ Goldi and PW-11 Pankaj stated that it was the present appellant who had asked PW-11 Pankaj and not PW-10 Vishal Singh @ Goldi to join him for drinks and upon that the quarrel took place. Prosecution has offered no explanation for this change in the genesis of the occurrence, which was initially reported to the police. …4… 8. Also, I find from the record that in the FIR, two accomplices of the appellant were specifically named, but the appellant himself had not been named. It was stated that the two named accused were accompanied by a Tibetan national, whose name was not known. The injury by Khukhri was not attributed to any of the three alleged assailants. PW-11 Pankaj, who lodged FIR Ext.PW7/A, was not knowing as to who stabbed Vishal Singh @ Goldi. It was only in the statement, under Section 161 Cr. P.C of PW-10 Vishal Singh @ Goldi that the present appellant was named. The said statement was made on 3rd October, 2005. PW-10 Vishal Singh @ Goldi, while in the witness box, stated that he did not know the name of the appellant when he made the statement to the police, but his name was disclosed by the police officer, who recorded his statement, after his photograph was shown to him by the said police official. 9. According to PW-10 Vishal Singh @ Goldi he was sitting in Tata Sumo vehicle when he was stabbed, but from the statement of PW-11 Pankaj it appears that PW-10 Vishal Singh @ Goldi was outside the vehicle when injury was inflicted to him. It has also come in the evidence that there were 5-6 other persons in Tata Sumo vehicle, by which Pankaj and Vishal Singh were travelling and they remained present in the vehicle even when Vishal Singh @ Goldi was taken to the hospital at Baijnath and then to Dharamsala, but the police did not chose to examine any of them, for the reasons best known to it. 10. According to prosecution, a cut was found on the jacket worn by the injured, which according to doctors, could have been caused by means of Khukhri Ext.P-1, which had allegedly been recovered at the instance of the appellant. This jacket was taken into possession on 9.10.2005, or say on the date on which Khukhri had …5… allegedly been recovered. No explanation has been put forward by the prosecution as to why the jacket was not taken into possession, soon after the matter was reported to the police and why its seizure was delayed until the recovery of Khukhri. 11. Evidence regarding alleged disclosure statement of the appellant, leading to discovery of Khukhri Ext.P-1, is also shaky. Two witnesses had allegedly been associated by the police during interrogation of the appellant and the recovery of Khukhri. Only one of them, namely PW-11 Pankaj was examined. The other witness associated by the police was Gopal. PW-11 Pankaj admitted that said Gopal is also a friend of the injured. Non association of any independent witness, during the alleged discovery of Khukhri, also creates reasonable doubt. 12. Taking into consideration the above stated position, I am of the considered view that the charge against the appellant does not stand proved beyond reasonable doubt. Hence, the appeal is accepted and the impugned judgment of the trial Court convicting and sentencing the appellant is set aside and he is acquitted. He being in jail is ordered to be released, immediately. June 1, 2009 (ss) ( Surjit Singh ), J