Himachal Pradesh High Court
Mahender Singh vs State Of Himachal Pradesh on 16 November, 2015
Bench: Rajiv Sharma, Sureshwar Thakur
IN THE HIGH COURT OF HEMACHAL PRADESH, SHIMLA.
Cr. Appeal No. 278 of 2015
Reserved on: November 06, 2015.
.
Decided on: November 16, 2015.
Mahender Singh ......Appellant.
Versus
State of Himachal Pradesh .......Respondent.
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
of
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting? Yes.
For the appellant: Mr. R.K.Bawa, Sr. Advocate, with Mr. Jeevesh Sharma,
Advocate.
For the respondent: rt Mr. Ramesh Thakur, Asstt. AG.
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Justice Rajiv Sharma, J.
This appeal is instituted against the judgment and order dated 9/10.7.2015, rendered by the learned Sessions Judge, Kinnaur, Sessions Division at Ramput Bushahr, Distt. Shimla, H.P. in Sessions Trial No. 0100040/2013, whereby the appellant-accused (hereinafter referred to as the accused), who was charged with and tried for offences punishable under Sections 302, 341 and 427 IPC, has been convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs.
50,000/- for the offence punishable under Section 302 IPC. He was further sentenced to undergo simple imprisonment for a term of one month and to pay a fine of Rs. 500/- for the commission of offence punishable under Section 341 IPC. The accused was also sentenced to undergo simple imprisonment for a term of one year and to pay fine of Rs.
5000/- for the commission of offence under Section 427 IPC. All the sentences were ordered to run concurrently.
::: Downloaded on - 15/04/2017 19:20:28 :::HCHP 22. The case of the prosecution, in a nut shell, is that Rajesh .
Sharma (since deceased) was an agriculturist and horticulturist by profession. He was having his land in Villages Bagain, Jamela and Karyal. He was residing with his family at Village Bagain. On 29.6.2013, at about 9:30 AM, the deceased left alone from his house to visit Village of Kotighat. His maruti Car No. HP-06-4084 was parked at village Jamela.
He went to Village Jamela to pick up his Car to go to village Kotighat. The deceased could not start his vehicle and thus he sought the help of his rt son Jitender Kumar and Veer Partap Nepali (labourer) to push and start his vehicle. Thereafter, the deceased left for Kotighat in his Car. The accused, at the same time, was seen going towards Derthu temple armed with a Danda. At about 11:30 AM, complainant, Anita Sharma, wife of the deceased called him on his cell phone but failed to get any response. At about 6-7 PM, Lal Hussain Gujjar, while moving along with his herd towards Derath, saw one white Maruti Car parked on the roadside with broken windscreen and windowpane. He also saw that road in front of the vehicle was obstructed by putting stones. He also saw one male lying downside the road. He went to his Dera and informed Ramesh Sharma about this fact on his cell phone at about 8:30 PM. The information was further conveyed by Ramesh Sharma to his brother Prem Dutt and later to Ratti Ram at about 7-8 PM. The information was also conveyed by Prem Dutt to Mool Raj and Virender Sharma, who went to the spot and ::: Downloaded on - 15/04/2017 19:20:28 :::HCHP 3 saw that road towards Narkanda was obstructed by putting stones. One white Maruti Car No. HP-06-4084 was parked on the roadside with .
broken windscreen and left windowpane with blood stains. The dead body of Rajesh Sharma was found lying below the road in a Nallah.
Thereafter, these persons informed Sh. Khema Nand Sharma, Pradhan Gram Panchayat, Kotighat, Tehsil Kumarsain. At about 11:45 PM, Sh.
of Khema Nand reported the matter to police. SI Rajinder Kumar visited the spot at 4:00 AM. On 30.6.2013, in the morning, complainant Anita Sharma, wife of the deceased came to know about the incident and she rt visited the spot. She got her statement recorded u/s 154 Cr.P.C. vide Ext. PW-1/A to SI Rajinder Kumar. The statement was sent to the Police Station, on the basis of which, FIR No. 75/2013 dated 30.6.2013, under Sections 302, 341 and 427/34 IPC was registered. The post mortem was got conducted. Recoveries were made from the spot. According to the opinion of Dr. Sangeet Dhillon, the cause of death was injury to brain due to blunt trauma, homicidal in nature while his blood alcohol concentration was found to be 301.30 mg%. The accused also made disclosure statement, on the basis of which, danda and clothes were recovered. The accused also identified the place of occurrence near Derthu Nallah. On completion of the investigation, challan was put up before the Court after completing all the codal formalities.
3. The prosecution, in order to prove its case, has examined as many as 26 witnesses. The accused was also examined under Section ::: Downloaded on - 15/04/2017 19:20:28 :::HCHP 4 313 Cr.P.C. He denied his involvement in the incident and has pleaded his false implication at the behest of Anita Sharma. The learned trial .
Court convicted and sentenced the accused, as noticed hereinabove.
Hence, this appeal.
4. Mr. R.K.Bawa, Sr. Advocate with Mr. Jeevesh Sharma, Advocate, for the accused has vehemently argued that the prosecution of has failed to prove the case against the accused. On the other hand, Mr. Ramesh Thakur, Asstt. Advocate General, appearing on behalf of the State, has supported the judgment/order of the learned trial Court dated rt 9/10.7.2015.
5. We have heard learned counsel for both the sides and gone through the judgment and records of the case carefully.
6. PW-1 Anita Sharma, testified that they had land at three villages, Bagain, Jamela and Karyal. Her husband went to village Karyal in his vehicle on 29.6.2013. When he reached at village Jamela, his car did not start. A cow had died in their family and as such, she sent her son Jitender to call Nepali Veer Pratap from Jamela. When her son reached Jamela, he alongwith Veer Pratap pushed the vehicle of her husband and it started. Her husband was to go to Kotighat near Narkanda on that day. At around 11:30 AM, she rang up on the cell phone of her husband but there was no response. On 30.6.2013, her sister-in-law (Jeethani) came to her and told that her husband has met with an accident. She accompanied her to Derthu Nallah. The vehicle of ::: Downloaded on - 15/04/2017 19:20:28 :::HCHP 5 her husband was in damaged condition and its windowpane was broken.
The blood was splashed on the window. His dead body was lying in the .
Nallah in the bushes. The matter was reported by Khema Nand Sharma to the Police. Her statement was recorded vide Ext. PW-1/A. She noticed injuries on head, arms, legs and other parts of the body of her husband.
She noticed two stones in the vehicle and the police took those stones of and wrist watch from the vehicle. She suspected that the accused had murdered her husband. Her husband had fenced his land and at that time the accused had threatened that in case he did not remove the fence, rt he would kill him. The dead body was brought by the police to Kumarsain and then taken to IGMC, Shimla for post mortem. In her cross-examination, she deposed that Begi Devi was informed by her husband Ratti Ram that her husband had met with an accident. She rang up her husband 3-4 times but he did not pick up the call. Her husband had started from Jamela at about 11:30 AM. No person met her who had seen accused going towards the spot or returning from there.
Chuna Ram, Deep Ram, Surat Ram etc. had forcibly taken road from their land. They had fenced their land. The accused did not execute threats to her husband in her presence. Her husband was going to report this incident to the police regarding execution of threats by the accused to the police and at that time, the accused assaulted and murdered him.
She told this fact to the I.O. that her husband was going to report this threat advanced by the accused.
::: Downloaded on - 15/04/2017 19:20:28 :::HCHP 67. PW-2 Ratti Ram, deposed that on 29.6.2013, at about 7-8 PM, he received a call of Prem Dutt to the effect that one vehicle had met .
with an accident near Derthu temple. As such, he told this incident to the villagers including Mool Raj, Prem Dutt and Virender Sharma and then they went to the spot. He found that the road towards Narkanda was blocked by placing boulders across the road. The vehicle of Rajesh of was on the road. Its front screen and window pane of left side were broken and stained with blood. The dead body of Rajesh was lying below the road in a Nallah. They informed Pradhan Khema Nand Sharma, who rt informed the police. Stones were also lying in the vehicle and wrist watch was also lying near the seat. He rang up his wife and his wife went to Anita Sharma to inform her. The accused and others had forcibly taken road from the land of deceased and the deceased had blocked that road by erecting fence. In his cross-examination, he deposed that road was taken from the land of the Rajesh about 1 ½ -2 years before the incident.
The fencing was done about six months before. Volunteered that the matter was reported regarding blocking of the path by Chuna Ram, brother of the accused and then fencing was removed in the presence of the police. The fencing was removed about six months before the incident.
8. PW-3 Mool Raj deposed that on 30.6.2013, she joined the investigation. The police lifted blood from the road, packed and sealed it in a box. The police also lifted blood from the left front windowpane of the ::: Downloaded on - 15/04/2017 19:20:28 :::HCHP 7 car as well as stone lying in the vehicle. The blood was taken into possession vide memo Ext. PW-3/A. The broken pieces of windowpanes .
stained with blood and stone was also taken into possession vide memo Ext. PW-3/B. The wrist watch was also taken into possession vide memo Ext. PW-3/C. The vehicle alongwith the papers was taken into possession vide memo Ext. PW-3/D. In his cross-examination, he admitted that it of had rained on 29.6.2013 at around 3-4 PM. There was some moisture.
9. PW-4 Bhoop Ram, deposed that the accused made disclosure statement vide Ext. PW-4/A. He admitted his guilt and told to the police rt that he has assaulted the deceased with danda and thrown it in the jungle. The accused then led the police party alongwith them to jungle near Derthu temple below the road and took out a danda. He identified it and gave it to the police. Recovery memo Ext. PW-4/B was prepared by the police. The accused also got his clothes recovered vide memo Ext.
PW-4/C. Danda is Ext. P-14, Grey Shirt is Ext. P-17, half sweater is Ext.
P-18 and lower is Ext. P-19.
10. PW-5 Dinesh deposed that on 7.7.2013, he alongwith Rajinder, remained with police in the investigation of the case at K.N.H., Shimla. The police showed one wrist watch to Narender. Narender was in K.N.H., hospital as his wife was admitted there. On seeing the wrist watch, Narender told that he had sold that watch to Mahender accused for a sum of Rs. 100/- in the year 2008. Memo was prepared in this regard vide Ext. PW-5/A. ::: Downloaded on - 15/04/2017 19:20:28 :::HCHP 8
11. PW-6 Narender Kumar deposed that his wife was admitted in K.N.H., Shimla on 25.4.2013 and remained there till 13.7.2013. On .
7.7.2013, the police visited K.N.H. with Rajinder and Dinesh. They showed him one wrist watch and asked him to identify it. He could not identify that wrist watch. He was declared hostile and cross-examined by the learned Public Prosecutor. He identified his signatures on memo Ext.
of PW-5/A.
12. PW-7 Gian Chand is the material witness. He told that he was going to village Bagain to the house of Ratti Ram to condole the death rt of his step mother. He was taking rest near Sarain of Derthu temple. The sarain of temple was below the road. It was around 11/11:15 AM. He saw accused going towards Narkanda side with danda in his hand. After some time, he went to Village Bagain. In the evening he returned to his village. On next day, he heard that Rajesh had died.
13. PW-8 Lal Hussain deposed that 3-4 months in a year, he brings buffaloes to Sishar jungle near Narkanda for grazing. On 29.6.2013, at about 6-7:00 PM, he was bringing his buffaloes back towards Derath as there was fear of wild animals. When he reached near Derthu temple, he saw one white coloured maruti car standing on the road. Its window panes were broken. He also saw stones kept on the road in front of the vehicle. He also saw a body of male lying in the nallah below the road. He did not go near that body. He went to his Dera and ::: Downloaded on - 15/04/2017 19:20:28 :::HCHP 9 rang up Ramesh Kumar on his cell phone who runs Karyana shop at Ekantbari.
.
14. PW-10 Jitender deposed that on 29.6.2013, cow of his uncle had died. He went to call Veer Pratap, a Nepali labourer. His father was to go to Kotighat in his car. He had parked his car at Jamela. When he reached there, he alongwith Nepali pushed the car of his father and it got of started. He also saw Mahender having a danda in his hand and he was going towards Derthu temple. On next day, he came to know that his father died near Derthu temple.
rt He went to the spot and saw windowpanes of the vehicle broken and stones were lying in front of it.
The dead body was lying in a Nallah below the road. In his cross-
examination, he admitted that his father and accused Mahender were friends. They used to sit together for drinks earlier but not after the incident when the accused and others forcibly constructed a road through their land.
15. PW-12 Dr. Sanjiv Kumar has examined the accused. He issued MLC Ext. PW-12/B.
16. PW-13 Dr. Vikrant Verma has conducted preliminary examination of the dead body. In his cross-examination, he admitted that he did not ascertain the probable time between injuries and death.
17. PW-14 Khema Nand deposed that on 29.6.2013 at 11:45 PM, he received a call from Ratti Ram of Village Bagain who told him that near ::: Downloaded on - 15/04/2017 19:20:28 :::HCHP 10 Derthu temple, there was a damaged maruti car and one body was also lying there. He informed the police telephonically in the PS Kumarsain.
.
18. PW-22 Naseeb Singh Patial, has proved report Ext. PW-22/A.
19. PW-25 SI Rajinder Kumar was the I.O. in the case. He received information. He reached the spot. On 30.6.2013, he met Mool Raj Sharma, Virender Sharma, Mahender Sharma and Bhoop Ram of Sharma. He recorded the statement of Anita Sharma under Section 154 Cr.P.C. vide Ext. PW-1/A, on the basis of which, FIR Ext. PW-23/C was recorded. The case property was taken into possession. On 2.7.2013, rt accused made disclosure statement under Section 27 of the Indian Evidence Act vide Ext. PW-4/A. The weapon of offence, danda was got recovered. The accused also got his clothes recovered from Village Larki, Kotighat. The blood sample of accused was procured from CHC Kumarsain vide application Ext. PW-12/A. On 7.7.2013, he got recorded statement of Narinder Kumar under Section 161 Cr.P.C. On 13.7.2013, he recorded the statement of Gian Chand Sharma, vide Ext. PW-25/L. He also recorded the statement of Jitender Kumar and Ramesh Kumar on 16.8.2013, under Section 161 Cr.P.C. vide Ext. PW-25/M and PW-25/N, respectively. He also recorded the statement of complainant Anita Sharma under Section 161 Cr.P.C. on 1.7.2013 vide Ext. PW-25/O on 1.7.2013. In his cross-examination, he categorically admitted that the complainant vide statement Ext. PW-1/A did not suspect anyone. He also ::: Downloaded on - 15/04/2017 19:20:28 :::HCHP 11 admitted that he sought the help of dog squad. This fact did not find mention in the investigation as it did not yield any result.
.
20. PW-26 Sangeet Dhillon, has issued provisional opinion vide Ext. PW-26/C. Final opinion was given vide Ext. PW-26/D after the chemical analysis report. According to her, the deceased died as a result of injury to brain due to blunt trauma, homicidal in nature. The alcohol of concentration in blood was 301.30 mg%. The injury could be caused by danda Ext. P-14. She also admitted in her cross-examination that urine sample was taken but she was not aware of its outcome.
rt
21. The case of the prosecution is entirely based on circumstantial evidence. In a case based upon circumstantial evidence, the motive plays a pivotal role. The case projected by the prosecution was that the deceased was having illicit relations with the wife of the accused.
The other motive attributed to the accused is that there was land dispute between the parties, more particularly, regarding fencing of the land.
22. The statement of PW-1 Anita Sharma, wife of the deceased was recorded under Section 154 Cr.P.C. vide Ext. PW-1/A on 30.6.2013.
She did not suspect anyone on that date. The statement of PW-1 Anita Sharma was also recorded under Section 161 Cr.P.C. on 1.7.2013 vide Ext. PW-25/O. In her statement recorded under Section 161 Cr.P.C. on 1.7.2013 vide Ext. PW-25/O, she has stated that accused used to suspect that her husband had illicit relations with his wife. In case, there was suspicion of this nature, it should have been mentioned in Ext. PW-1/A ::: Downloaded on - 15/04/2017 19:20:28 :::HCHP 12 when the statement of PW-1 Anita Sharma was recorded on 30.6.2013, initially. It was improvement made by her at the time of recording of her .
statement under Section 161 Cr.P.C and that too on 1.7.2013.
23. Now, as far as the land dispute is concerned, PW-1 Anita Sharma, in her statement has deposed that Chuna Ram, Deep Ram, Surat Ram etc. had forcibly taken road from their land. She also of admitted that the accused did not advance threats to her husband in her presence. PW-2 Ratti Ram, in his cross-examination, has admitted that road was taken from the land of Rajesh about 1 ½ -2 years before the rt incident. The fencing was done about six months before. Voluntarily deposed that the matter was reported regarding blocking of the path by Chuna Ram, brother of the accused and then fencing was removed in the presence of the police. The fencing was removed about six months before the incident. Since the fencing had already been removed, this could not have been the motive to kill the deceased after 6 months of the removal of the fence.
24. PW-8 Lal Hussain deposed that when he was bringing his buffaloes back and when he reached near Derthu temple, he saw one white coloured maruti car standing on the road. Its window panes were broken. He also saw stones kept on the road in front of the vehicle. He also saw a body of male lying in the nallah below the road. He did not go near that body and he did not know whether he was alive or not. He went to his Dera and rang up Ramesh Kumar on his cell phone who runs ::: Downloaded on - 15/04/2017 19:20:28 :::HCHP 13 Karyana shop at Ekantbari. PW-9 Ramesh Kumar deposed that Lal Hussain rang him up and told that one maruti car was standing near .
Derthu temple and in front of it, stones had been stacked. He also informed that a man was lying in Derthu nallah and he was not sure whether he was alive or dead. PW-14 Khema Nand deposed that he received call from Ratti Ram on 29.6.2013. He told him that near Derthu of temple, damaged maruti car and body was lying. He informed the police.
The sequence is that PW-8 Lal Hussain told PW-9 Ramesh Kumar about the incident and thereafter PW-14 Khema Nand was also informed by rt Ratti Ram PW-2.
25. The statement of PW-9 Ramesh Sharma was recorded, as per the statement of PW-25 SI Rajinder Kumar, under Section 161 Cr.P.C. on 16.8.2013 vide Ext. PW-25/N. The statement of Ramesh Sharma (PW-9) ought to have been recorded immediately after the incident. In order to inspire confidence in the prosecution case, it is must that the statements under Section 161 Cr.P.C. are recorded promptly.
26. PW-1 Anita Sharma deposed that her husband was going to village Kotighat. His vehicle did not start. When her son reached Jamela, he and Veer Pratap, Nepali, pushed the vehicle of her husband and it started. At around 11:30 AM, she rang up on the cell phone of her husband but there was no response. On 30.6.2013, her sister-in-law (Jeethani) came to her and told that her husband met with an accident.
PW-10 Jitender Kumar is the son of deceased who had gone to help his ::: Downloaded on - 15/04/2017 19:20:28 :::HCHP 14 father after his Car had developed snag. He saw accused Mahender. He was carrying danda in his hand. He was going towards Derthu temple.
.
The statement of PW-10 Jitender Kumar was recorded, as per the statement of PW-25 SI Rajinder Kumar on 16.8.2013. The incident has taken place on 29.6.2013. There is no explanation put forth as to why the statement of material witness PW-10 Jitender Kumar was recorded on of 16.8.2013 vide Ext. PW-25/M, belatedly.
27. Now, we will advert to the statement of PW-7 Gian Chand. He deposed that he was taking rest near Sarain of Derthu temple. The sarain rt of temple was below the road. It was around 11/11:15 AM. He saw accused going towards Narkanda side with danda in his hand. After some time, he went to Village Bagain. In the evening he returned to his village.
On next day, he heard that Rajesh had died. The case of the prosecution, precisely, is that accused had blocked the road with boulders/stones and thereafter assaulted him and broken the windowpanes and thereafter administered beatings to him, resulting in his death and then throwing the body in the Nallah. It is not believable as to how accused came to know that deceased has left his village to go to Kotighat. It is not the case of the prosecution that somebody has told the accused that deceased Rajesh has left his house to go to village Kotighat.
28. The danda was got recovered on the basis of statement Ext.
PW-4/A. When the accused has no knowledge about the movement of the deceased, he was not supposed to carry danda in his hand in order to ::: Downloaded on - 15/04/2017 19:20:28 :::HCHP 15 assault him. Moreover, the statement of PW-7 Gian Chand, was also recorded by PW-25 SI Rajinder Kumar vide Ext. PW-25/L on 13.7.2013.
.
The two most material witnesses, who have seen the accused in the proximity of the deceased, are PW-7 Gian Chand and PW-10 Jitender.
The statement of PW-7 Gian Chand, as noticed hereinabove, was recorded under Section 161 Cr.P.C. on 13.7.2013 vide Ext. PW-25/L, though the of incident is dated 29.6.2013 and the statement of PW-10 Jitender Kumar was recorded even later on 16.8.2013 vide Ext. PW-25/M. The statements should have been recorded with promptitude to inspire rt confidence in the version of the prosecution, more particularly, when both of them have allegedly seen accused carrying danda in his hand near the shop.
29. Now, the Court will advert to the recovery of wrist watch.
According to PW-5, Dinesh, the police showed one wrist watch to Narender. Narender was in K.N.H., hospital as his wife was admitted there. On seeing the wrist watch, Narender told that he had sold that watch to Mahender accused for a sum of Rs. 100/- in the year 2008. PW-
6 Narender Kumar deposed that the police has shown him one wrist watch and asked him to identify it. He could not identify that wrist watch. He was declared hostile and cross-examined by the learned Public Prosecutor. He has admitted his signatures on memo Ext. PW-5/A. The fact of the matter is that the statement of PW-6 Narender Kumar was also recorded by the police on 7.7.2013 vide Ext. PW-25/K under Section ::: Downloaded on - 15/04/2017 19:20:28 :::HCHP 16 161 Cr.P.C. The recording of the statements under Section 161 Cr.P.C.
by the police belatedly has further dented the case of the prosecution, .
more particularly, when the entire case is based upon circumstantial evidence.
30. The post mortem examination was conducted by PW-26 Dr. Sangeet Dhillon. According to her provisional opinion vide Ext. PW-26/C, of the deceased died as a result of injury to brain due to blunt trauma. It was homicidal in nature. According to her final opinion vide Ext. PW-
26/D, the deceased died as a result of injury to brain due to blunt rt trauma, homicidal in nature. The alcohol concentration in blood was found to be 301.30 mg%. It is also evident from Ext. PA, FSL report that the contents of ethyl alcohol in parcel No. 4 i.e. blood was 301.30 mg%.
In her cross-examination, PW-1 Anita Sharma has denied that her husband and accused were friends. However, PW-10 Jitender, son of deceased has admitted that accused and deceased were friends and they used to consume liquor together and after the incident when accused and others forcibly constructed a road through their land, they have stopped consuming liquor together.
31. PW-1 Anita Sharma has also deposed in her cross-
examination that her husband has not taken drinks on 29.6.2013 when he left the house. However, the fact of the matter is that the quantity of ethyl alcohol in the contents of blood was 301.30 mg%. It clearly establishes that he was drunk at the time when the incident has taken ::: Downloaded on - 15/04/2017 19:20:28 :::HCHP 17 place. He has left the house at 9:30 AM and according to the prosecution case, the accused hit him around Noon by initially placing stones on the .
road and thereafter breaking the windowpanes and assaulting him at 11:30 PM. It belies the case of the prosecution thoroughly if the contents of the alcohol in the blood of the deceased are taken into consideration. It is not believable that a man could consume liquor to the extent that the of contents of the ethyl alcohol could reach 301.30 mg% in his blood at 11:30 AM when as per the prosecution case he had left his house at around 9:30 AM. Thus, the incident has not taken place around 11:30 AM, as projected rt by the prosecution.
32. According to the prosecution witnesses, the deceased immediately after removing the snag of the vehicle, started his vehicle and left the spot for Kotighat. The distance between the place where the deceased had parked Car at Village Jamela and the place where car was found in damaged condition was only 2 kms. PW-10 Jitender has also denied that his father has taken liquor on that day. But, the fact of the matter is that the content of ethyl alcohol in the blood of deceased was found to be 301.30 mg%.
33. According to Ext. PA, report of the FSL, the quantity of ethyl alcohol in exhibit P/4 (blood) was 301.30 mg%. A person with blood alcohol concentration of 150-300 mg% would be intoxicated, as per Lyon's Medical Jurisprudence and Toxicology, 11th Edition, page 626. Similarly in Medical Jurisprudence and Toxicology by Dr. K.S.Narayan Reddy, ::: Downloaded on - 15/04/2017 19:20:28 :::HCHP 18 Edition 2004 (Reprint), at page 590, a person who has consumed 150-300 mg %, would be drunk. In Parikh's Text book of Medical Jurisprudence .
and Toxicology at page 855, it is stated that at a concentration of 0.15 per cent (150 mg %), some are under the influence of alcohol and others decidedly would be drunk. With increasing concentrations the symptoms become more intense. In the instant case, the quantity of ethyl alcohol in of exhibit P/4 (blood) was 301.30 mg%. Since the accused had very high concentration of ethyl alcohol in blood, the possibility of receiving the injuries by fall or his vehicle involved in an accident cannot be ruled out, rt more particularly, when there is no eye witness to the incident and no motive is attributed to the accused for killing the deceased.
34. PW-10 Jitender Kumar has also admitted in his cross-
examination that he has told the SHO after 3-4 days of the incident about the carrying of danda by the accused. In case, he had seen the accused carrying danda, he would have apprised the SHO immediately when he was student of 10+ 2. Similarly, PW-7 Gian Chand should have told the police that he has seen the accused carrying danda in his hand on 29.6.2013 near Derthu temple. Thus, the presence of the accused on 29.6.2013 near the place of incident is doubtful. The version of PW-8 Lal Hussain is also doubtful. If he had seen the body of male lying in the Nallah, he should have definitely gone down to see whether that person was alive or not.
::: Downloaded on - 15/04/2017 19:20:28 :::HCHP 1935. The motive attributed to the accused has not been proved.
The recovery of wrist watch from the Car is also doubtful in view of the .
statement of PW-6 Narender Kumar and the late recording of the statement under Section 161 Cr.P.C. on 7.7.2013. The presence of the accused on the spot as per the statement of PW-7 Gian Chand and PW-10 Jitender Kumar, is also doubtful. The statements of Gian Chand (PW-7) of and Jitender Kumar (PW-10) under Section 161 Cr.P.C. were recorded by PW-25 SI Rajinder Kumar on 13.7.2013 and 16.8.2013, respectively, though the incident is dated 29.6.2013. PW-10 Jitender Kumar has also rt admitted that he has told SHO after 3-4 days of the incident about the carrying of danda by the accused. The dispute regarding fencing of the land was already resolved six months back as per the statement of PW-2 Ratti Ram. The deceased was heavily drunk and the ethyl alcohol in his blood content was 301.30 mg%. No motive was initially imputed by PW-1 Anita Sharma. It is only when her statement was recorded under Section 161 Cr.P.C. and that too on 1.7.2013, she stated that accused used to suspect that her husband was having illicit relations with his wife. The incident has taken place on 29.6.2013. PW-1 Anita Sharma deposed that she called her husband at 11:30 AM but she did not get any response and then in her cross-examination, she deposed that she rang up her husband on that day for 3-4 times, but he did not pick up the call. It is surprising that despite the fact that her husband has not come back in the evening on 29.6.2013, she has not lodged any missing report with any ::: Downloaded on - 15/04/2017 19:20:28 :::HCHP 20 person in the locality to ascertain the whereabouts of her husband. She was told only in the morning on 30.6.2013 that accident has taken place .
near Derthu temple.
36. Mr. Ramesh Thakur, Asstt. Advocate General for the State has vehemently argued that PW-13 Dr. Vikrant Verma who has conducted the preliminary examination of the body of the deceased has not noticed of any smell of alcohol. However, the fact of the matter is that the concentration of alcohol in the blood was 301.30 mg%, as per FSL report Ext. PA. rt
37. Since, the presence of the accused is doubtful on the spot, the recovery of danda Ext. P-14 and clothes, including DNA profile also will not link the accused with the alleged incident. The prosecution has failed to complete the chain. It is settled law that in order to prove the case based on circumstantial evidence, the entire chain should be complete and it should point towards the guilt of the accused. Thus, the prosecution has failed to prove the case against the accused under Sections 302, 341 and 427 IPC, beyond reasonable doubt.
38. Accordingly, the appeal is allowed. Judgment/order of conviction and sentence dated 9-10.7.2015, rendered by the learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushahar, Distt.
Shimla, H.P., in Sessions trial No. 0100040/2013, under Sections 302, 341 and 427 IPC is set aside. The accused is acquitted of the charge framed under Section 302, 341 and 427 IPC. Fine amount, if any, ::: Downloaded on - 15/04/2017 19:20:28 :::HCHP 21 already deposited by the accused is ordered to be refunded to him. Since the accused is in jail, he be released forthwith, if not required in any other .
case.
39. The Registry is directed to prepare the release warrant of the accused and send the same to the Superintendent of Jail concerned, in conformity with this judgment forthwith.
of ( Rajiv Sharma ), Judge.
November 16, 2015,
(karan)
rt ( Sureshwar Thakur ),
Judge.
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