Hari Kishan vs State Of Haryana

2. The case of the prosecution that led to the sentencing of the appellant is based on the statement of Harkesh (PW-2), one of the brothers of Dinesh, made before Bhup Singh SI/SHO of Sadar Palwal PS (PW-8) at 7.20 am on June 24, 1995 at Palwal hospital where he had brought the dead body of Dinesh.

4. As to the cause of the incident Harkesh stated that shortly before the occurrence his younger brother Suresh was elected as the village Sarpanch. He did not pay any heed to 3 the unreasonable demands of the accused and this greatly annoyed them as they thought of themselves as the Choudhary of the village. This had led to an altercation and an exchange of hot words between the two sides on the previous evening but the matter was then patched up by discussion. He finally stated that the accused in league with one another had killed his brother Dinesh by giving him knife and lathi blows.

6. Harkesh and Kanti Prakash, who, according to the statement made in the FIR, had received injuries while trying to save Dinesh were medically examined by Dr. Krishna Kumar (PW-3) at 7.10 and 7.15 a.m. respectively on June 24, 1995. 4 The post-mortem examination on the dead body of Dinesh was conducted on the same day at 12.45 p.m. by a team of three doctors of which Dr. Chandrika Malik (PW-5) was also a member. The post-mortem report noted the following injuries on the person of the deceased:

7. According to the post-mortem report, death was caused due to shock and hemorrhage as a result of injury no. 1 which was ante-mortem in nature and was sufficient to cause death in ordinary course of nature. Injuries Nos. 2, 3, 4 were found to be post-mortem in nature. It was further stated that time elapsed between death and post-mortem was within 18 hours.

9. In the main case the prosecution examined eight witnesses out of whom three, namely Harkesh (PW-2), Bhim Singh (PW-4) and Suresh Kumar (PW-6) claimed to be eye witnesses. Of the rest, Dr. Kishan Kumar (PW-3) was the doctor who had examined the injuries on the person of Harkesh and Kanti Prakash, Dr. Chandrika Malik (PW-5) was a member of the team of three doctors who had conducted post-mortem on the body of Dinesh, Bhoop Singh (PW-8) was the SHO Sadar Palwal PS who had recorded the statement of Harkesh and had investigated the case. The remaining two, Ashok Kumar (PW-1) and Ramesh Chand (PW-7) were formal witnesses. The prosecution also produced some documents and some material exhibits. The accused, of course, took the plea of false implication but they did not lead any evidence in their defence.

14. The High Court by the judgment and order coming under appeal dismissed all the three appeals and the revision and, thus, upheld the judgments of the trial court in all aspects.

20. All these circumstances, according to Mr. Gupta, strongly indicated that the death of Dinesh did not take place in the manner and at the time as claimed by the prosecution.

24. According to the prosecution, the occurrence in which Dinesh was killed took place shortly after 6.15 in the morning of June 24. Harkesh was medically examined at 7.10 and Kanti Prakash at 7.15 am respectively, that is to say, within an hour when the wounds/injuries on their person would be very fresh.

27. The submission that Harkesh had received the injuries on the evening of June 23 and not in the morning of June, 24 gains credence from the fact that an incident between the two sides had admittedly taken place on the evening of June 23, 1995.

31. We, accordingly, allow the Criminal Appeal No. 133/09 and set aside the judgments of the High Court and the trial court and acquit him of the charges under sections 302 & 324. Criminal Appeal No. 134/09 relating to his conviction under section 25 of the Arms Act was not pressed, presumably because the conviction no longer carries any sentence. This is, accordingly, dismissed.

32. The appellant Hari Kishan is directed to be released forthwith if he is not wanted in any other case.

.............................................J [ AFTAB ALAM ] .............................................J [ DR. B.S. CHAUHAN ] New Delhi;

January 6, 2010.