IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal 218 of 1992 Decided on: 03.08.2007 State of H P …….Appellant Versus Ashwani Kumar and others ……. Respondents Coram: The Hon’ble Mr. Justice Surjit Singh, J. The Hon’ble Mr Justice Surinder Singh, J. Whether approved for reporting ?1 . For the appellant Mr. D.S.Nainta, Deputy Advocate General. For respondents Nos. 1,2,4 and 6 Mr Dinesh Thakur, Advocate, vice Mr Rakesh Jaswal, Advocate. For Respondent No.5 Mr. Bimal Gupta, Advocate. Surjit Singh, J (Oral) Heard and gone through the record. Respondents were sent up for trial, for offences punishable under Sections 304 (II), 328 read with Section 34 of the Indian Penal Code. Prosecution case was that the respondents had a Liquor Vend at Delhi Gate, Nahan. On 22.7.1988, three persons named Joginder Singh, 1 Whether the reporters of Local Papers may be allowed to see the judgment ? yes. 2 Basarth Khan and Rup Kumar, all deceased, purchased a bottle of licit liquor from the vend of the respondents and after consuming that liquor they died. On the next following day, i.e. 23.7.1988, all the three deceased were taken to the hospital. Condition of two of them, namely Basarath Khan and Joginder Singh, was serious and probably they were unable to speak. The third one, namely Rup Kumar, however, made a statement that he and other two deceased had purchased a bottle of liquor from the vend of the respondents and consumed the same by the side of a tank near Kali Sathan Temple and after consuming that liquor they could not get up. The aforesaid statement of Rup Kumar was reduced into writing. The same is Ex.PW-7/E. On the basis of this statement, which was recorded by a Police officer namely PW-21 Tulsi Dass, case was formally registered against the respondents. Post mortem of the three dead bodies was conducted, on the request of the police. Viscera were sent for chemical examination. The Chemical Examiner reported vide reports Ex.PW-16/1/A, Ex.16/1/-B and Ex.PW.16/3-C that the viscera of all the three deceased had the contents of methyl alcohol. On the receipt of the report of the 3 Chemical Examiner, all the respondents were challaned. All of them were charged with offences punishable under Sections 304 (II), 328 read with Section 34 of the Indian Penal Code. On their pleading not guilty, they were put on trial. All of them stand acquitted by the trial court. Dying declaration of Rup Kumar deceased has been disbelieved by the trial court. We have heard the Deputy Advocate General and perused the record. It is true that in his statement Ex.PW-7/E Rup Kumar got recorded that a bottle of liquor was purchased from the liquor vend of the respondents by him and the other two deceased and that all three of them consumed that liquor near Kali Sathan temple on the side of the pond and after consuming that liquor they could not stand up, but the testimony of widows of three deceased, including Rup Kumar, who made the so called dying declaration Ex.PW-7/E, belie the contents of dying declaration. Firstly, in the dying declaration it is recorded that after consuming liquor, the three deceased could not get up from the spot, where the liquor was consumed but their widows namely PW-1 Smt. Shakina Begam (w/o Basarth Khan), PW-2 Smt. 4 Kaushyala Devi (w/o Joginder Singh) and PW-3 Smt. Kamla Devi (w/o Rup Kumar) have stated that they reached home between 7.30 P.M. to 8.00 P.M. Further these witnesses have stated with one voice that all the three deceased were habitual drunkards and the capacity to drunk of each of them was so much that each could consume up to 1½ bottle daily. Not only this all of them have stated that the deceased were habitual of consuming illicit liquor as also raw spirit. Widow of Rup Kumar, PW-3 Smt. Kamla Devi, (who made so called dying declaration Ex.PW-7/E) went to the extent of saying that when the deceased Rup Kumar was being taken to the hospital he made the statement that he had consumed spirit. Prosecution took 12 samples, apparently from 12 separate bottles, from the vend of the respondents during investigation and sent them to the Chemical Examiner for testing. Report of the Chemical Examiner, Ex. DA, suggests that contents of the samples were of licit liquor, meaning thereby they did not contain methyl alcohol or any other poisonous substance. Also there is one flaw in the prosecution case. The empty bottle from which the three deceased allegedly consumed poisonous liquor, 5 purchased from the vend of the respondents, was not taken into possession, which was supposed to contain some traces of liquor. If the bottle was taken into possession and its traces got examined from the Chemical Examiner, that would have been the best evidence indicating whether the liquor allegedly purchased from the vend of the respondents contained any methyl alcohol or not? No explanation for this serious lapse, on the part of the investigation, has been put forward. Therefore, the inference should be that no empty bottle of licit liquor was there and if it is so it cannot be said that any bottle was purchased by the three deceased from the vend of the respondents on the fateful day. In view of the above stated position, we find no merit in the appeal. The same is, therefore, dismissed (Surjit Singh),J. August 3, 2007 (Surinder Singh),J. (D) 6