IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.9 of 2003 Date of judgment: July 31, 2009 Baldev Raj ..Appellant. Versus State of H.P. …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. G.D.Verma, Sr. Advocate with Mr. Romesh Verma,Advocate.. For the Respondents : Mr. Ramesh Thakur, Assistant Advocate General. Surjit Singh, J. (Oral) This appeal by Baldev Raj (appellant), is directed against the judgment dated 1.1.2003 of learned Additional Sessions Judge, whereby he has been convicted of offence, under Section 307 IPC and sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.5000/-; in default of payment of fine, to undergo simple imprisonment for a further period of 6 months. Prosecution case, as it emerges from the evidence on record, may be stated. PW9 Gopi Singh, Whether reporters of the local papers may be allowed to see the judgment? - 2 - was employed as Superintendent in the office of DFO, Theog in the year 1998. Appellant Baldev Raj, was employed in the same office as a daily waged driver on a truck. On 22.4.1999, some staff members of DFO’s office, threw a party on account of their having been sanctioned telephones. Three bottles of whisky were arranged. PW9 Gopi Singh, appellant Baldev Raj, PW4 Anil Sharma, PW5 Gopal Singh, one Devi Ram, one Prakash Chand and one Chet Ram, consumed that liquor. They started drinking around 5.00 pm. At 8.00 pm, when drinking bouts were still in progress, Gopi Singh PW9, asked the appellant why average of fuel consumption in respect of the truck, put in his charge, was higher. This led to exchange of hot words. PW4 Anil Sharma, who was working as Junior Assistant in the DFO office, asked both Gopi Singh PW9 and the appellant to leave the office immediately and even threatened to call the police. Upon this, both PW9 Gopi Singh and the appellant cooled down and left the office. Other persons also left the office. PW9 Gopi Singh went towards Bus Stand to board a bus for Shimla, where, it appears, he had his - 3 - house. Appellant followed him. Other persons went to the nearby hut of Chowkidar. PW4 Anil Sharma, deputed Gopal Singh PW5 to bring a few bottles of beer from the bazaar. When PW5 Gopal Singh went to the bazaar, he saw the appellant and Gopi Singh PW9 talking to each other near the Bus stop. Around 9.30 pm, when Santosh Kumar ASI, PW11, was on petrol duty, in Shalli Bazaar, Theog, he was informed by Constable Khem Raj that an un- known person had been hit by a stranger on his head with a brick and the injured was lying on the spot. PW11 Santosh Kumar ASI, then went to the spot. He saw PW9 Gopi Singh, lying injured near the bus stop. He drew report Ex.PW10/A and sent the same to the police station. Formal FIR Ex.10/B was registered on the basis of report Ex.PW10/A. Injured PW9 Gopi Singh was taken to the hospital where his medical examination was conducted by PW8 Dr. Kuldip Singh Kanwar. The said doctor found a lacerated wound 1” x ½” x ½” on the left parietal region. It was reddish in colour and clotted blood was present around it. On touch, the wound bled. Underlying bone appeared to depressed. Injury - 4 - was opined to be simple but dangerous to life and to have been caused with some blunt weapon within 1 to 6 hours. PW9 Gopi Singh, injured, was shifted to IGMC, Shimla, where it was found that he had compound comminuted fracture of left parietal bone for which he was operated upon. On 28.4.1999, PW9 Gopi Singh was declared by a medical officer fit to make statement, vide certificate Ex.PW6/A. However, Investigating officer did not record his statement. He only recorded substance of certain facts disclosed by Gopi Singh PW9, in his zimini dated 28.4.1999. Detailed statement of Gopi Singh PW9, was recorded by Investigating officer on 6.5.1999. In the said statement Gopi Singh PW9, got recorded that he suspected that he might have been hit by the present appellant, because earlier when they were drinking in the office, they happened to exchange hot words. Thereafter on 11.5.1999, investigating officer recorded the statements of PW4 Anil Sharma and PW5 Gopal Singh to the effect that the appellant, the injured and several other persons including the above named persons had consumed liquor and thereafter appellant - 5 - and the injured were seen at Bus Stand, Theog by PW5 Gopal Singh around 8.15 pm. A case having been committed to it, learned Sessions Court (Additional Sessions Judge), charged the appellant with offence under Section 307 IPC. He pleaded not guilty. Prosecution examined 13 witnesses to prove the charge. These witnesses included PW9 Gopi Singh injured, PW4 Anil Sharma, PW5 Gopal Singh, PW8 Dr. Kuldip Singh Kanwar, who examined Gopi Singh at Government Hospital, Theog and gave initial medical aid and PW1 Dr. Kashmir Singh, who operated the injured at IGMC, Shimla on 23.4.1999 and PW11 ASI Santosh Kumar. During the course of trial, Gopi Singh PW9, stated that when after taking the drinking bouts, he was going towards Bus Stop, the appellant followed him and when he was waiting for the bus, he came close to him and started talking politely and cordially and even offered to arrange some light vehicle for him for travelling to Shimla but when he refused, appellant left saying he was going to his house. He further stated that instead of proceeding towards his house, appellant went towards Shalli Bazaar and picked up a - 6 - brick and threw the same which hit his head. Thereafter, he became unconscious. Though this statement was in total contradiction with his statement which he made to the police on 6.5.1999, learned defence counsel did not cross examine him by reference to the said statement. PW4 Anil Sharma stated that after the appellant and PW9 Gopi Singh had left DFO’s office, he accompanied by other members of the party, went to Chowkidar’s hut and deputed PW5 Gopal Singh to fetch a few bottles of beer. He stated that on return PW5 Gopal Singh, informed that he had seen the appellant and PW9 Gopi Singh standing at the Bus Stop and they were peaceful. PW5 Gopal Singh stated that when he went to fetch beer, he saw the appellant and PW9 Gopi Singh talking to each other, in a friendly manner. Learned trial Court believed the testimony of PW9 Gopi Singh and the above-named two members of the drinking party and concluded that the appellant is guilty. - 7 - I have heard learned counsel for the appellant, as also the learned Assistant Advocate General and gone through the record. Even though the learned defence counsel did not confront PW9 Gopi Singh with his statement under Section 161 Cr.P.C. in which he did not state that he was hit with a brick by the appellant and, therefore, the witness can not be said to have been contradicted by his previous statement, yet the learned trial court ought not to have relied upon the statement of PW9 Gopi Singh, unless it was corroborated in material particulars, for a number of reasons. Incident had taken place on 22.4.1999. PW9 Gopi Singh, when in the witness box, clearly stated that he regained consciousness when admitted in the hospital at Theog. Gopi Singh PW9, remained admitted in the hospital only for a day, as according to the evidence on record, he was operated upon for the head injury at IGMC, Shimla on 23.4.1999. Therefore, the statement of PW9 Gopi Singh that he regained consciousness when admitted in the hospital at Theog, means that he regained consciousness on 22.4.1999 itself. Gopi Singh stated that on regaining - 8 - consciousness he narrated the entire incident to the police as also to the doctors. However, the prosecution has not produced any record of the narration of incident made by PW9 Gopi Singh when he was admitted in the hospital at Theog. Again, on 28.4.1999, an application Ex.PW6/A had been moved by PW11 ASI Santosh Kumar to the medical officer of IGMC, Shimla, who was attending upon PW9 Gopi Singh, for seeking his opinion whether Gopi Singh injured, was fit to make a statement or not. Doctor certified on 28.4.1999 itself that he was fit to make a statement. PW11 Santosh Kumar, however, did not record any statement of Gopi Singh on that day. PW 9 Gopi Singh in his cross-examination stated that he was not fully recovered on 28.4.1999 and so he did not make any statement. However, from the zimini recorded by PW11 on 28.4.1999, I find that though he did not record any separate statement of PW9 on that day, he questioned him with respect to the incident and he (PW9 Gopi Singh) told that he remained busy doing work in his office upto 8.00 pm and thereafter he went to the bus stop. He also stated that he went - 9 - to the bus stop all alone and did not see anybody following him. He further stated that he did not have any enmity with anybody nor did have any dealings with anybody and no altercation had taken place between him and some other person on that day. No doubt, this zimini can also not be used in favour of the appellant, because PW11 Santosh Kumar was not questioned by the court with respect to the same, during the trial, but this fact is a circumstance again necessitating corroboration of the version which PW9 Gopi Singh gave in the Court for the first time on 21.7.2001, or say more than two years after the occurrence. Learned trial Court has observed that the testimony of Gopi Singh PW9, is corroborated by PW4 Anil Sharma and PW5 Gopal Singh. This view of the learned trial Court is also not correct. PW4 Anil Singh and PW5 Gopal Singh, made the statements to the police implicating the appellant only after appellant’s statement under Section 161 Cr.P.C. had been recorded on 6.5.1999. Their statements were recorded on 11.5.1999. There may be justification for delay in recording the statement of PW9, because of his being - 10 - down with head injury, but Anil Sharma PW4 and Gopal Singh PW5, were supposed to have made the statements about the injured having been seen in the company of the appellant soon before he was found lying with head injury at the Bus Stop, much earlier Learned trial Court has rejected the defence plea that PW9 Gopi Singh being heavily drunk could have fallen on a brick, parapet or other hard protruding object and sustained the injury by holding that per testimony of Dr. Kuldip Singh Kanwar PW8, he was not drunk. Gopi Singh PW9, has himself admitted that he had consumed liquor in the company of the appellant and other persons including PW4 Anil Sharma and PW5 Gopal Singh. These two witnesses have also have testified that Gopi Singh PW9, was dead drunk when he left the office. They have stated that there were three bottles of whisky. As per testimony of PW5 Gopal Singh, there were six persons, who consumed the contents of all the three bottles in full. Three bottles of whisky are sufficient to completely booze six persons. - 11 - There is no direct evidence, except the uncorroborated and shaky statement of PW9 Gopi Singh, in support of the prosecution charge. In view of the above stated position, I am of the considered view that the case of the prosecution does not stand established beyond reasonable doubt. Hence, the appeal is accepted. Judgment dated 1.1.2003 of the learned trial Court convicting and sentencing the appellant is set aside and he is acquitted. July 31, 2009. (Surjit Singh),J. s.