IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.:122/1998 Decided on: 19.3.2010 _____________________________________________ State of Himachal Pradesh. …Appellant. Versus Ravi Lal and others. …Respondents. ________________________________________________________ Coram: Hon’ble Mr. Justice Surjit Singh, Judge. Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the Appellant : Mr. Ramesh Thakur, Assistant Advocate General. For the Respondents : Mr. Deepak Kaushal, Advocate. _____________________________________________________ Surjit Singh, J (oral). State has sought reversal of the judgment of acquittal dated 17.3.1997 delivered by the Sessions Court in a case under section 302 read with section 34 of the Indian Penal Code instituted against the respondents by Jubbal Police. Case of the prosecution, as per record, may be summed up thus. Deceased Balbir Bahadur Gorkha had been employed by PW-1 Madan Mohan to look after his orchard. PW-1 Madan Mohan had also employed some more Gorkhas, including PW-2 Man Bahadur alias Monu Bhai as domestic help. On 14.4.1996, there was a fair near the village of PW-1 Madan Mohan. Several 1 Whether reporters of the local papers may be allowed to see the judgment? . 2 Gorkhas, including deceased Balbir Bahadur, and the respondents went to see the fair. They returned in the evening. When they reached near the hut of PW-2 Man Bahadur, deceased Balbir Bahadur started using abusive language. Then Man Bahadur asked him not to hurl abuses. But the deceased not only damaged the stairs leading to Man Bahadur’s hut, but also started proclaiming that nobody other than he would be staying for the night in the hut. Man Bahadur then went to inform PW-1 Madan Mohan at his residence. PW-1 Madan Mohan accompanied by his father, a brother and PW-2 Man Bahadur alias Monu Bhai went to his orchard, where Balbir Bahadur and the Gorkhas were allegedly making ruckus. Neither the respondents nor Balbir Bahadur deceased were found there. PW-1 Madan Mohan, his father and brother and Man Bahadur (PW-2) searched for the deceased and the respondents. Ultimately, Man Bahadur spotted a shirt of the deceased in the orchard of one Mela Ram. Dead body of Balbir Bahadur was also found at a short distance from the shirt. It had several injuries. Next day, Madan Mohan (PW-1) informed the Police. Police reached the spot. Statement of Madan Mohan, Ex.PW-1/A, was recorded, under section 154 of the Code of Criminal procedure by PW-9 ASI Munish Kumar. The said statement was sent to the Police Station, Jubbal where case was formally registered vide FIR Ex.PW-5/A on the basis of the said statement. Inquest was conducted. Inquest report is Ex.PW-3/A. Dead body was sent to the hospital for post mortem examination. PW-3 Dr. Satish Rathore conducted the post mortem. He noticed large number of wounds all over the body. The wounds included 3 one piercing wound on an eye, which had made a window inside. Head was also found broken into small pieces numbering 8 or 10. Stabbing on the neck at different places was also noticed. Maxillary below right eye was found broken and fractured. The wound was 2”x4”x4” deep. Spinal cord was also damaged. Four ribs of right side were also damaged. Spleen was ruptured. Doctor opined that spinal cord injury and hypoxic hypoxia and profuse bleeding were the causes of death. Death was opined to have occurred within one hour of sustaining the injuries and time between the death and injuries was opined to be less than 48 hours. Post mortem was conducted on 16.4.1996. Prosecution sought to connect the respondents with the crime on the basis of testimony of PW-2 Man Bahadur alias Monu Bhai and PW-1 Madan Mohan, both of whom claimed that the deceased, when lying injured in the orchard, told them that the injuries had been caused by respondent Ravi Lal and the brother of one Ran Bahadur, namely, Tikka Ram. Respondents denied their involvement in the crime. Suggestions were thrown to PW-2 Man Bahadur that the deceased had an evil eye on his wife’s sister, who had been staying with him in his hut alongwith her father those days. Probably these suggestions were thrown as part of the plea that Man Bahadur himself was responsible for causing the death because of the aforesaid reasons. Learned trial court has not believed the testimony of Man Bahadur alias Monu Bhai and his employer PW-1 Madan Mohan with the reasoning that Man Bahadur alias Monu Bhai himself is a 4 suspect and, therefore, his and his employer’s testimony cannot be acted upon unless corroborated by some independent witness. We have heard the learned Assistant Advocate General and also counsel for the respondents and perused the record. Man Bahadur, while in the witness box as PW-2 admitted that his wife’s younger sister accompanied by his father had been living with him those days. He also admitted that the deceased while hurling abuses and making a provocation was proclaiming that only he would be staying in his (witness) hut that night which implies that he alone intended to stay in the house with the women for the night. That was more than enough provocation for Man Bahadur to retaliate. Also we find some contradictions in the testimony of PW-2 Man Bahadur and PW-1 Madan Mohan as to the time at which Balbir was spotted in injured state in the orchard of Mela Ram. We also find contradictions in the testimony of witnesses and the statement Ex.PW-1/A, which was made by PW-1 Madan Mohan to the police, under section 154 of the Code of Criminal Procedure. In the said statement, it is recorded that the deceased told, while lying injured in the orchard, that he had been inflicted wounds by respondent Ravi Lal and his brother, but in the court not only PW-1 Madan Mohan but also PW-2 Man Bahadur alias Monu Bhai stated that the deceased told that he had been caused injuries by Ravi Lal and the brother of Ran Bahadur. In these circumstances we are of the considered view that testimony of Man Bahadur and his employer PW-1 Madan Mohan 5 cannot be made the basis of conviction, in the arena of corroboration. In view of above stated position, we see no merit in the appeal. The same is, therefore, dismissed. [[ Surjit Singh), J [ (Rajiv Sharma), J 19.3.2010 *awasthi*