IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 296 of 2001 Date of decision: 09.03.2011 _______________________________________________________________ The State of H.P. .....Appellant. Versus Balbir singh. .....Respondent. Coram The Hon'ble Mr. Justice R.B. Misra, J. The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? _______________________________________________________________ For the appellant: Mr. R.K. Sharma, Sr. Additional Advocate General with Mr. Rajinder Dogra, Additional Advocate General. For the respondent: Mr. G.D. Verma, Sr. Advocate, with Mr. Romesh Verma, Advocate. R.B. Misra, J (Oral). The present criminal appeal has come up for consideration after leave to appeal under Section 378(3) of the Code of Criminal Procedure has been granted in reference to the impugned judgment and order dated 01.02.2001, passed by the learned Additional Sessions Judge, Shimla, District Shimla, H.P. in sessions Trial No. 27-S/7 of 2000, acquitting the respondent-accused for the offence under Section 302 of the Indian Penal Code. 2. According to the prosecution, on 22.07.2000 Milkhi Ram (deceased) was seen accompanying accused Balbir Singh under the influence of liquor, quarreling with each other. On the next day, i.e., on 23.07.2000, at about 4 p.m., they were again seen by PW-2 (Hiru 1 Whether reporters of Local Papers may be allowed to see the judgment? ...2... Ram) under the influence of liquor abusing each other. However, on the same day, i.e., 23.07.2000, Milkhi Ram was found dead. Investigation was made and formal FIR, Ex. PW-12/A, was registered. Disclosure statement, Ex. PW-5/A, of Balbir Singh was recorded after his arrest in presence of PW-5 (Rajinder Singh) and Chet Ram and recoveries were made. Postmortem of the deceased was conducted. After completion of investigation accused-respondent was charged for the offence under Section 302 of Indian Penal Code. 3. In order to prove its case, prosecution examined as many as twelve witnesses, whereas, accused through his statement under Section 313 Cr.P.C. denied the prosecution case. 4. PW-1, Dr. Dalip Tekta, conducted the postmortem examination of the deceased. PW-2 (Hiru Ram), PW-3 (Sanjay) and PW-4 (Dinesh Kumar) witnessed the deceased lying dead on the road side. These witnesses also noticed the deceased and the accused a day earlier when they were under the influence of liquor and abusing each other. PW-5 (Rajinder Thakur) is a witness of disclosure statement, PW-5/A, made by accused Balbir Singh and consequently got recovered the purse, Ex. P-1, vide seizure memo, Ex. PW-5/B, muflar, Ex. P-2, wrist watch, Ex. P-3, and Pattu, Ex. P-4, recovered vide seizure memo, Ex. PW-5/C and currency notes of denomination of ` 50/- and `. 100/- Ex. P-5 and Ex. P-6, respectively recovered vide seizure memo Ex. PW-5/D. 5. PW-6 (Ashutosh Bhoil) had seen the accused-respondent and the deceased under the influence of liquor abusing each other. PW-8 (Roop Lal) prepared the tatima, Ex. PW-8/A and jamabandi, Ex. ...3... PW-8/B of the spot where the dead body of the deceased Milkhi Ram was found lying. PW-9 (Anant Ram S.I.) is a formal witness, who prepared the challan after completion of investigation. Lady constable Meena No. 1256 PW-10 and another Lady constable Meena No. 866 PW-11 are also formal witnesses as they received the information at the Police Post, Fagu and Police Station, Theog and recorded Roznamcha, Ex. PW-10/A and Ex. PW-11/A, respectively. PW-12 (Kushal Chand A.S.I.) investigated the case and recorded the FIR, Ex. PW-12/A, after the receipt of rukka, Ex. PW-2/A. PW-12 also got the photographs of the spot, Ex. PW-12/A-1 to Ex. PW-12/A-10 and prepared site plans, Ex. PW-12/B, Ex. PW-12/C, Ex. PW-12/D and also brought on record the report of the Chemical Examiner, Ex. PW-12/E. 6. PW-1, Dr. Dalip Tekta, conducted the postmortem examination of the person of the deceased and noticed as below :- “External Injuries: 1. Bleeding from the right side of the eye present, which is running towards the parital region. There was subconjectival conjestion. 2. Contusion on the right periorbital region almost covering the whole of the right eye, bluish in colour, extending up to the right eye brow in upper side from which the skin can be peeling out easily. 3. Contusion on the left hypuchondric region alongwith abrasion 3 cm x 4 cm. There is bluish discolourision of the left Hyponchondric region extending towards up to the inguinal ring. Internal injury There was rupture of spleen, transfer rupture alongwith blood clots on about one litre of blood in the abdominal cavity. Smell of alcohol present in the stomach.” 7. As per statement of PW-1 there was rupture of spleen, ...4... transfer rupture alongwith blood clots, about one litre blood in the abdominal cavity. Smell of alcohol present in the stomach. In the opinion of PW-1, deceased died of rupture of spleen leading to hypovolumic shock and ultimately to cardio respiratory arrest. In cross-examination PW-1 has stated that if a person falls from a height under the influence of liquor, he can sustain such type of injuries. 8. On analysis of the prosecution witnesses and materials on record, we find that no direct evidence is available on record about the cause of rupture of spleen ultimately causing death of the deceased. There is also no direct evidence available on the record to prove that accused Balbir Singh was responsible for causing the death of the deceased, as no witnesses including PW-2 (Hiru Ram), PW-3 (Sanjay), PW-4(Dinesh Kumar) and PW-6(Ashutosh Bhoil) have stated that anyone of them had seen accused-respondent, Balbir Singh, giving any blow or push to the deceased as a result of which he had fallen down and sustained injuries on his person. PW-2, PW-3 and PW-4, whereas, on the other hand have stated that when they came on the spot deceased/Milkhi Ram, breathed his last however they have not seen accused Balbir Singh giving any blow or push or causing any injury on the person of the deceased. PW-2/Hiru Ram in the opening lines of his cross-examination stated that “I do not know as to how deceased Milkhi Ram received injuries on his person and how he died”. PW-2 (Hiru Ram) has also stated in his cross-examination that “it is correct that accused Balbir Singh did not cause any injury on the person of deceased Milkhi Ram in my presence. I saw deceased with accused Balbir Singh a day earlier to the occurrence. However, on the day the ...5... deceased's body was noticed, I did not saw the accused with him”. Similarly, PW-3/Sanjay Kumar in his cross-examination has stated that “I did not notice myself giving any push to the deceased or causing any injuries on his person. Accused came on the spot after about ten minutes when deceased Milkhi Ram expired”. PW-3 (Sanjay Kyumar) has, however, stated in his cross-examination that “it is correct that I came to know that deceased Milkhi Ram died due to fall under the influence of liquor”. 9. PW-4 (Dinesh Kumar) in his cross-examination has stated that “it is correct that deceased fell because he was under the influence of liquor”. PW-6 (Ashutosh Bhoil) stated that on 22.07.2000, he was working in his orchard at village Manjholi. At about 3 / 4 p.m. accused Balbir Singh was abusing the deceased Milkhi Ram and both were abusing each other. The labourers working there also witnessed this. On the next day, i.e., 23.07.2000, both deceased and accused- respondent were seen abusing each other. However, this fact is not corroborated by the testimony of relevant prosecution witnesses, namely, PW-2(Hiru Ram), PW-3 (Sanjay), PW-4 (Dinesh Kumar). 10. As per the testimony of PW-3/Sanjay, when he was grazing his cattle, he noticed deceased Milkhi Ram sleeping on the path. Thereafter, he went to water his cattle and when he came back deceased was breathing his last. PW-3 has specifically stated that he did not see deceased earlier to the day of occurrence with anyone else. In view of the testimony of PW-2(Hiru Ram), PW-3 (Sanjay), PW-4 (Dinesh Kumar) and PW-6 (Ashutosh Bhoil), it appears that Balbir Singh neither caused any blow or push to the deceased nor he caused ...6... any hurt to the person of the deceased. In view of testimony of PW-4 (Dinesh Kumar), both were in drunken state. Deceased Milkhi Ram slept near his house and accused-respondent was trying to lift him, but deceased Milkhi Ram was unable to get up and the accused left the deceased on the spot. At about 3 p.m. on 23.07.2000, accused- respondent again came to the spot and saw that deceased Milkhi Ram was dead. As such, there is no evidence on record to co-relate the accused Balbir Singh regarding sustaining of injuries on the person of the deceased Milkhi Ram. 11. The endeavour of prosecution to prove the guilt of the accused-respondent for the offence by virtue of recoveries of purse, Ex. P-1, muflar, Ex. P-2, wrist watch, Ex. P-3, khes (Pattu), Ex. P-4 and currency notes of ` 50/-, Ex. P-5 and ` 100/- note, Ex. P-6, belonging to the deceased were recovered from the accused-respondent shall also not be helpful as PW-3/Sanjay has himself stated that Balbir Singh came to the spot after Milkhi Ram had already died. Thereafter, he removed purse, Ex. P-1, from the pant of the deceased and also started counting the notes taken out from the said purse. He further stated that accused also removed wrist watch of the deceased. PW-4 (Dinesh Kumar) has stated that about 3 p.m. accused came to the spot and after observing Milkhi Ram dead, took out purse of the deceased from his pant and wrist watch and muflar from the head of the deceased. Thus, testimony of these prosecution witnesses (PW-3 and PW-4) who were said to be supporting the prosecution case also cannot be disbelieved to the extent of recovery of above articles from the custody of accused-respondent, however, recovery of these articles from the possession of accused- respondent could not be sufficient to hold him guilty of the offence ...7... under Section 302 of the Indian Penal Code. 12. Both accused-respondent and the deceased took liquor on 22.07.2000 and 23.07.2000 and both were seen by some of the prosecution witnesses, but nothing could be inferred that they were inimical and they were drinking together. Only remaining under the influence of liquor and seen by some of the prosecution witnesses cannot be sufficient to indicate that accused-respondent, Balbir Singh, could be held responsible for killing the deceased, Milkhi Ram, when none of the prosecution witnesses had specifically came forward with an assertion that Balbir Singh had given blow or push to deceased Milkhi Ram under the influence of liquor. 13. On analysis of the prosecution witnesses and the material on record, learned Additional Sessions Judge, has rightly found that the prosecution has not been able to prove its case beyond reasonable doubts. In our considered view also, the prosecution has failed to bring home the guilt against the accused-respondent. In these circumstances, criminal appeal being devoid of merit is dismissed. 14. The bail bonds of the accused-respondent are discharged. (R.B. Misra) Judge (V.K. Sharma) Judge 9th March, 2010 (virender)