IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.A. No. 264 of 1998. Decided on: 28.4.2010. ___________________________________________________________ State of H.P. … Appellant. Versus Som Raj and others. … Respondents. ___________________________________________________________ Coram: Hon’ble Mr. Justice Surjit Singh, Judge. Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 For the appellant : Mr. Ramesh Thakur, Assistant Advocate General. For the Respondents : Mr. Virender Rathore, Advocate. ___________________________________________________________ Surjit Singh, J. (Oral). This appeal by the State is directed against the judgment, dated 30.12.1997 of the learned Additional Sessions Judge (2), Kangra at Dharamshla, whereby respondents, who were tried for the offences under Sections 302 and 201 read with Section 34 IPC, have been acquitted. 2. Prosecution’s case is that on 15.12.1996, when deceased Hans Raj was returning home with a load of fuel wood and reached near the house of respondent, Som Raj, around 7.00 p.m., he was assaulted by Som Raj, Narotam, Ashok Kumar and Neelam Kumari and given fist and kick blows. Wife of Hans Raj, namely, PW-2, Smt. Rano Devi was informed by one Harnam Singh and one Sat Pal that the deceased was lying injured in front of the house of respondent, Som Raj. She 1 Whether reporters of the local papers may be allowed to see the judgment? 2 accompanied by her son went there. Hans Raj was lying with bleeding injuries. He was shifted to the house with the help of two other persons. He allegedly told his wife Smt. Rano Devi (PW-2) that he has been beaten up by the above named respondents. A brother of the deceased arranged a Maruti van in which he was taken to hospital at Indora. Doctor to whom the deceased was taken declared that he was already dead. Dead body was taken back home. Respondent Tara Chand, Kishan Chand, Gurdial Singh and Karam Singh forced and pressurised the family members of the deceased to cremate the dead body without postmortem. 3. A complaint was lodged with the police by PW-2, Smt. Rano Devi on 30.12.1996. That complaint is Ext. PW-2/A. On the basis of this complaint, case was formally registered, vide FIR Ext. PW-2/B. During the course of investigation, police recorded the statement of PW-1, Majju, who claimed to be an eye witness. His statement under Section 164 Cr.P.C. was also recorded during the investigation. On completion of investigation, report under Section 173 Cr.P.C. was filed. 4. Case was committed to the Sessions Court by the concerned Magistrate. The learned Sessions Court charged the respondents, Som Raj, Narotam, Ashok Kumar and Neelam Kumari with offence under Section 302 read with Section 34 IPC and rest of the respondents with offence under Section 201 read with Section 34 IPC. They did not plead guilty and were, therefore, put on trial. 3 5. We have heard the learned Assistant Advocate General as also the learned counsel for the respondents and gone through the record. 6. Testimony of Majju, who claims to be an eye witness, makes an interesting reading. He says that he was present in his courtyard at a distance of 40-50 meters, when he saw the deceased coming with a head load of fuel wood and falling in front of the house of respondent Som Raj. He stated that thereafter respondents Som Raj, Neelam Kumari, Ashok Kumar and Narotam gave beating to Hans Raj by kicking and fisticuffing him. In cross- examination, he stated that he is a man of 70 years old and cannot see in the night. He states that it was quite dark when the incident took place. He admitted that he was taken to Police Station, more than 15 days, after the occurrence and at the Police Station, discussion had taken place as to who could have been the witnesses and that he was chosen as a witness, on account of his house being near to the place of occurrence. He stated that he could not clearly see the assailants and that it was just by guess that he has stated that the persons, who gave beating to the deceased were Som Raj etc. Also, he stated that his statement was recorded before the Magistrate during investigation of the case, because the police did not trust him. From an overall reading of the statement, we feel that he is not a trustworthy witness and no reliance can be placed on his testimony. 7. PW-2, Smt. Rano Devi, no doubt stated in her examination-in-chief that the deceased had told that he had been beaten up by Narotam, Neelam Kumari, Som Raj and Ashok 4 Kumar, but she offered no explanation for not lodging the complaint with the police promptly. She made complaint to the police 15 days after the death of Hans Raj. In cross-examination, she admitted that she and her relatives themselves had arranged for cremation of the dead body, meaning thereby that the allegation in the complaint Ext. PW-2/A that the respondents had forced her to cremate the dead body, is not correct. She very categorically stated that she did not take any steps to report the matter to the police until she lodged the complaint Ext. PW-2/A on 30.12.1996. Also, she stated that none of her relatives, who had been coming to her place to condole the death of her husband, advised her to report the matter to the police which fact suggests that the respondents are not responsible for the death of Hans Raj. In one breath, she stated that she did not lodge the report with the police because one Gurdial Singh had been impressing upon her not to report the matter, in very next breath, she stated that Gurdial Singh never came to her during the period between the death of her husband and the making of complaint Ext. PW-2/A. Thus, the testimony of PW-2 is also not believable. 8. PW-3, Bishambar Dass is the real brother of the deceased. He stated that nobody told him as to how did Hans Raj die and that was the reason for not lodging a report with the police. PW-4, Harbans Lal though did state that deceased, on being asked by his wife, told that he had been beaten up by Som Raj, Narotam, Neelam Kumari and Ashok Kumar, he is contradicted by his statement Ext. PW-4/A, which he gave to the police during investigation and with which he was duly confronted. In the said 5 statement, he did not get recorded that wife of the deceased had asked the deceased as to what had happened to him and the latter informed that he had been given beating by the aforesaid persons. No other witness was examined by the prosecution. 9. In view of the above discussed evidence, we do not think that the order of acquittal of the respondents is not supported by the evidence on record for that the judgment of the trial Court is perverse. Hence, the appeal is dismissed. (Surjit Singh) Judge. (V.K. Sharma) Judge. April 28, 2010. (cr)