IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 239 of 1994 Reserved on: 04.11.2008 Date of decision: 6.11.2008 State of H.P. ... Appellant Versus Rattan Chand … Respondent Coram : The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellant: Mr. R.M. Bisht, Deputy Advocate General. For the respondent: Mr. Bhupender Ahuja vice Mr. Anup Chitkara, Advocate. Per V.K. Ahuja , J.: This is an appeal filed by the State of H.P. against the judgment of the Court of learned Sessions Judge, Kangra at Dharamshala, dated 2.12.1993, vide which the respondent was acquitted of the charge framed against him under Section 302 I.P.C. Briefly stated, the facts of the case are that deceased Duni Chand was a resident of village Kapara. His daughter Raj Dei was married to the respondent and after marriage, the respondent alongwith his wife had been living in the house of the deceased as “Ghar Jawain”. On 29.3.1992, at about 8.00 A.M., the respondent came to PW Vijay Singh, Pradhan of Gram Panchayat, who was present at the shop of one 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 Kirpal Singh and told him that the deceased has fallen and, therefore, he should go and see him. The said Vijay Singh, Pradhan, thereafter accompanied the respondent and found Duni Chand lying on the bed with an injury on his throat. The clothes of the deceased were blood stained. Upon enquiry, the deceased could not tell anything as he was unable to speak. PW Vijay Singh then summoned Up-Pradhan Chaudhary Ram and Ward Panch Onkar Singh, who were sent to lodge the report with the police. On arrival of the police, PW Vijay Singh told them that an unknown person had inflicted injury on the person of the deceased. A case under Section 307/452 I.P.C. was registered. The injured was taken to Haripur Hospital and then to Zonal Hospital, Dharamshala, where he was medically examined and from there he was taken to I.G.M.C. Shimla on 30.3.1992. He was operated upon on 31.3.1992 and ultimately died on 5.4.1992. A case under Section 302 I.P.C. was registered and after investigation, the challan was filed before the learned Judicial Magistrate, who committed the case to the learned trial Court, who tried the respondent leading to his acquittal. We have heard the learned counsel for the parties and have gone through the record of the case. On a perusal of the evidence led by the prosecution, it is clear that there is no direct evidence to the crime committed in the present case. The prosecution case mainly rests upon the statement of PW Vijay Singh, Pradhan and other witnesses, who have stated that the deceased by gesture had pointed out that this injury was inflicted by the respondent his son-in-law. There is some evidence in regard to the confession made by the respondent before the witnesses and as such, the evidence, therefore, needs to be carefully appreciated. The most 3 material witness can be said to be PW-12 Kashmir Singh, who has stated that on 29th March at about 6.00 or 6.30 A.M., he was going to milch his buffalo. When he heard the accused calling his son and telling him to send his father. He told him that he would be coming after milching the buffalo and meanwhile, he was informed by Gram Sewak Beli Ram who came to his house that Duni Chand was having injury on his throat by someone. He refused to go to the spot stating that it was a case of murder. It is further in his evidence that he saw Pradhan Vijay Kumar going to the house of Duni Chand at about 8.00A.M. accompanied by respondent. He was called by the Pradhan and went there who asked him to call Onkar Singh, Ward Panch and he was called by him. Thereafter, he was sent to inform the sister of the accused as asked by the accused. Then he was asked to bring a taxi and he alongwith one constable and 2-3 persons took the deceased to Haripur Hospital in the taxi. But there, no medical treatment was given and they brought the deceased to Zonal Hospital, Dharamshala, on the same day. The deceased was referred to I.G. Medical College Hospital and he accompanied the deceased and respondent to Shimla, where Duni Chand was admitted in the I.G. Medical College. He stated that when the deceased was being taken for operation, his clothes were removed and there was a ring in his finger which was to be removed. The respondent tried to remove the same but the deceased did not allow him to do so. He removed the ring and when he was giving the same to respondent, the deceased stopped him from doing so by waiving his hand and the ring was kept by him. PW-12 Kashmir Singh had further stated that after operation the deceased regained consciousness at about 3.00P.M. On 1.4.1992, at about 11.00A.M., when the accused was not present and 4 he was only present, the deceased refused to go to house and when he asked the deceased, he was told by gestures that his throat has been cut at home by the respondent. He talked to the respondent thereafter as to what he had learnt from the deceased and the respondent with folded hands repented for whatever had happened and stated that in a fit of anger he had caused the injury and he should not tell anything to any person. He stated that the respondent also obtained his thumb impression on a paper, on which something was written in Hindi. He also obtained the signatures of another patient lying admitted in the same ward and the writing was kept by the respondent which is Mark-A, on which his thumb impression was obtained by the respondent. He also admitted that the deceased was conscious when the police arrived at the spot. PW-12 Kashmir Singh further stated that he returned on 1.4.1992 and he reached his village accompanied by constable Sita Ram and he told what he had learnt from the deceased. But constable Sita Ram never took him to Police Station nor asked him to tell the S.H.O. He did not go to the police and tell anything as to what he had learnt from the deceased. He stated that his statement was recorded by the police on 11.4.1992 and he had told the facts to Pradhan Vijay Singh on returning from Shimla as to what was told by the deceased. However, he did not talk to any other person in this regard. The statement of this witness does not inspire confidence since he had learnt from the deceased at Shimla itself that it was the respondent who had committed this crime but he only tells Vijay Singh, Pradhan, in this regard as well as the constable who came with him from Shimla. But no efforts are made to lodge any report with the police or contact the Investigating Officer in the case informing him about what has been learnt by this witness from the 5 deceased and it is only after eleven days when his statement was recorded on 11.4.1992 that he stated about this fact for the first time in his statement. Coming to the statement of the said Pradhan Vijay Singh, who was examined as PW-6, he had stated that the accused came to him on 29.3.1992, at about 8.00A.M., took him to his house that his father-in-law had a fall. He visited the house of the accused and saw Duni Chand on the cot with the support on his back having cut injury on his throat and it was bleeding. He called Onkar Singh, Vice President Chaudhary Ram and then sent Duni Chand to Civil Hospital alongwith constable Kashmir Singh for taking him to the hospital. During investigation, a knife was found in the Attachi case lying in the room upstairs. He did not state in his statement that PW-12 Kashmir Singh had told him after coming from Shimla what the witness had been told by the deceased at Shimla. Therefore, the statement made by PW-12 Kashmir Singh also becomes doubtful. This witness further admitted that when he reached the house of Duni Chand, he was conscious and alert but cannot say whether he was understanding. However, he stated that he made no enquiry from him, again stated, when he enquired, the deceased could not communicate anything clearly but he was speaking alright, though his language was not clear. He denied the suggestion that he was opposing the respondent settling in the village of his in-laws or that he has enmity with the respondent since he did not support him in the Panchayat Election. The next material witness is PW-23 Onkar Singh, who stated that he was called by Pradhan Vijay Singh to the house of Duni Chand who having a cut mark on his throat and the injury was bleeding. He 6 stated that on his enquiry, the deceased gesture to him that somebody came in the morning, kept his hand on his forehead and cut his throat. When he further enquired, the deceased told him that the person who had cut the throat was a person of the family and when he further enquired, he replied that it was his son-in-law who had cut his throat. Then he was sent to call the police. He stated that when he made enquiry, Pradhan Vijay Singh was standing outside the room in the Verandah and in case this fact has been told to him by the deceased, Vijay Singh must have also learnt about it at the same time and he could have stated about this fact having been learnt by him from this witness or the deceased telling at that time which is not so. He stated that he did not disclose what transpired between him and the deceased to the Pradhan which part of his statement looks surprising that once he had learnt as to who was the assailant, he did not tell to the Pradhan present there about this fact. He also did not disclose this information to the Police Post Ranital though he met the A.S.I. and also the Moharrir constable there as stated by him. He also stated that the police stayed at the spot on 29.4.1992 but he did not disclose this information which he received from the deceased. The conduct of this witness is unnatural and the learned trial Court had referred to two decisions and had held that where the witnesses failed to furnish information for two days and no explanation was given by the prosecution, it creates doubt about the genuineness of the prosecution case. Apart from the above, the prosecution had also tried to prove the statement recorded by PW-15 Sita Ram, Constable, at the instance of the accused in the hospital at Shimla Ext. PQ. PW-15 Sita Ram has stated that he accompanied the deceased to Indira Gandhi 7 Medical College, Shimla and stated about the admission of the injured in the hospital. He stated that on 31.4.1992 (which should have been 31.3.1992), the accused asked him to write a statement which he will dictate and whatever was dictated was written by him and he gave the same to the accused. Again on 1.4.1992, a note was given to him by the accused having the thumb impression and the signatures of some persons. He reached the Police Post Ranital on 3.4.1992 and handed over that note to A.S.I. He stated that Ruka Ext. PQ which was written by him, was dictated by the accused. In this statement, which is allegedly at the instance of the deceased, the deceased is alleged to have stated that some unknown person awakened him, inflicted a blow upon his person who could not be identified by him and this statement is being recorded by the constable t the instance of the respondent who may have tried to prepare the said statement for his own defence. The conduct of this constable has to be deprecated who behaved in most irresponsible manner and recorded the statement of the deceased which was never made by the deceased and he recorded as to what was told to him by the respondent. He came back to his place of posting but never told the Investigating Officer of attempt made by the respondent to save himself but thereafter this statement appears to have been given to A.S.I., which have also been produced in evidence. The said statement was not of no help and it could not have been relied upon. The learned trial Court had rightly disbelieved this statement, but had wrongly concluded that it can be treated as a dying declaration, which observations are absolutely incorrect since it was not the statement of the deceased nor was made by the deceased in presence of the scribe PW-15 8 Sita Ram and, therefore, the learned trial Court wrongly concluded that it can be taken as the statement of the deceased. The learned trial Court had also discussed the evidence of PW-15 Sita Ram, constable and PW-26 Gulab Singh, S.I., who gave different versions as to why this evidence was not taken earlier. Different reasons have been given for the delay which have been discussed by the learned trial Court. PW-15 Sita Ram, constable, says that he was on earned leave, while PW-26 Gulab Singh, S.I. says that he was on duty in connection with investigation of some other case. Therefore, the case of the prosecution was rightly held to be self contradictory but it was never a dying declaration made by the deceased. However, keeping in view the conduct of PW-15 Sita Ram in the manner in which he behaved, though being a police official, needs to be investigated. Apart from the above, the prosecution had also examined two witnesses to prove that the deceased had expressed his doubt upon the respondent that he will kill him since he was having strained relations with him. The material witness in this regard is PW-10 Smt. Sukh Devi, who had stated that Duni Chand came to her house a day before his death. While taking tea, it was told by him that it the last tea as he was apprehending that he would be killed by his son-in-law on the following day and she told him that no son-in-law will kill his father-in-law just for the sake of the property. She stated that she never talked to anyone about this fact prior to her statement to the police. In view of her statement that she never told this fact to any person how the police could consider that this witness was knowing about some facts material for the case and her statement should be recorded. The other witness 9 examined is PW-11 Rattan Singh, who has stated that one day earlier Duni Chand came to him and talked to him that his daughter Raj Dei and accused Rattan Chand were quarreling with each other and he should intervene and settle the matter. His statement is not material particularly in view of the statement of the wife of the respondent, namely, PW-13 Smt. Raj Devi who has clearly stated that the relations in between her and her husband as well as in between her husband and her father were cordial. The statements of both these witnesses do not further substantiate the case of the prosecution. Apart from the above, the prosecution had also examined PW-1 Dr. Shashi Sharma, Medical Officer, Zonal Hospital, Dharamshala, who examined the injured and prepared MLC Ext. PA. She stated that the patient was fully conscious. He had given the history “alleged to have been attacked by a sharp knife by an unknown person.” She did not mention in the MLC or stated in Court that this fact was told by the witness by gesture or he was unable to speak. She is clear that this information was given by the injured who was fully conscious and she was not cross-examined by the learned Public Prosecutor for the State, to show that the deceased was never conscious or never told the facts to the Medical Officer or that this fact was told by the respondent accompanying the deceased. This shows that the very first statement of the witness made in this case was accepted by the prosecution as correct which clearly shows that this was the first version given by the injured, which cannot be ignored lightly in which he had attributed this act not to the respondent but to some unknown person. Apart from this, this fact cannot be sight of that the respondent all along had made efforts to inform the Pradhan and others about the occurrence that his father-in- 10 law was lying injured and had taken all steps to take him to hospitals firstly to Haripur, then to Zonal Hospital Dharamshala and then to I.G.M.C. Shimla, for treatment. In case, a person commits an offence himself, he always takes time to take the injured to the hospital so that he does not recover and state anything as against him but the facts show otherwise, which rather points out to the innocence of the respondent. The other evidence is not very material. Keeping in view the above discussion, it is clear that the prosecution had failed to prove their case beyond any reasonable doubt and the view taken by the learned trial Court on the basis of the evidence cannot be said to be perverse calling for an interference by this Court. In view of the above discussion, we accordingly hold that there is no merit in the appeal filed by the appellant, which is dismissed. The bail bonds furnished by the respondent shall stand discharged. A copy of the judgment be sent to Director General of Police, Himachal Pradesh (by name), for conducting an enquiry into the conduct of PW-15 Sita Ram, C. No. 645 and for taking whatever action, as may be deemed necessary in view of the facts of the case. ( Deepak Gupta ), Judge ( V.K. Ahuja ), November 6 , 2008 Judge (BSS) 11