State of H.P. vs Amar Chand, alias Amru

Dev Darshan Sud, J

The State has appealed against the judgment of the learned Chief Judicial Magistrate, Kullu acquitting the respondent for offence u/s 304-A of the Indian Penal Code (hereinafter referred to as the IPC). The prosecution case, in brief, is that Smt. Kumbh Dassi, who was the wife of complainant Tape Ram PW1, had gone to jungle/forest near the village to cut grass. Smt. Pingla Devi, PW2, was with her. After sometime, Pingla came running and informed the complainant that his wife had been hit by a stone rolling down from the hillside. He rushed to the spot and found his wife lying dead. It is alleged that PW1 Tape Ram found that stone was actually thrown/pushed by the accused and this fact was disclosed to him by his sister PW2 Pingla.

It is undisputed before me that post mortem of the deceased was conducted by PW6 Dr. G.D. Gaur, at Zonal Hospital, Kullu. He found a number of injuries on her body as reported by him in autopsy report Ext.PW6/A. The cause of death has been opined as cardio respiratory failure due to head injury. The time between the injury and death was 15 minutes and between the death and post-mortem was 36 to 48 hours.

In order to prove its case, the prosecution has examined 8 witnesses. No defence witness was examined. Ext.PW8/A is the FIR which has been registered on statement Ext.PW1/A made by PW1 Tape Ram. It is alleged therein that on the fateful day, the deceased had gone to jungle to cut grass etc. and at that point of time she was accompanied by PW2 Pingla Devi. According to him, he was informed by her that the accused was responsible for throwing/pushing a stone down the slope which caused the death of Kumbh Dassi. PW2 is Pingla Devi, sister of the complainant. She states in her evidence that it was the accused, who was responsible for throwing/rolling down the heavy stone which crushed Kumbh Dassi. She admitted in her cross examination that the family of the deceased and the accused are inimical to each other.

The mainstay of the prosecution case is the extra judicial confession which the respondent-accused had made before Pardhan PW7 Khub Ram and PW4 Het Ram, BDC member. The learned Court, while considering this fact, holds that PW7 Khub Ram in whose presence the extra judicial confession was made does not support the case of the prosecution. He has been declared hostile. Nonetheless even applying the principle of falsus in uno falsus in omnibus which does not apply to criminal trials in India, I am not persuaded to hold that his statement in any manner proves the prosecution case that the accused has made an extra judicial confession. To further strengthen the aspect that the deceased was not killed by throwing/rolling down the stone, PW6 Dr. G.R. Gour who conducted the post mortem of Kumbh Dassi admits that the injuries could have been caused by a stone, but states in cross examination that injuries could not have been caused by throwing/rolling down the stone weighing about one quintal as in that case, the vital parts of the body of the deceased would have been totally crushed. It is the prosecution case that stone which caused the death of Kumbh Dassi was weighed of 40-50 Kg. No crush injuries were found on the body of the deceased. Learned Assistant Advocate General submits that the learned trial Court was wrong in not believing the evidence of PW2 Pingla Devi and that of PW4 Het Ram, one being the eye witness of the entire episode and the second being the witness to the extra judicial confession. So far as the evidence of Pingla Devi PW2 is concerned, all that I need to say at the cost of repetition is that they were inimical towards the accused and the evidence which has been brought on record including the contradictions between the ocular version and medical evidence it would not be safe to rely on their testimonies. So far as PW4 Het Ram BDC member is concerned, I do not find anything on record that PW7 Khub Ram stated anything contrary to the fact and situation more especially when nothing has been brought on record to establish that he was favouring the accused. It is now well settled that if two views are possible in appeal, one favouring the accused and another the prosecution, the view favouring the accused should and ought to have been adopted. Appeal stands disposed of. Bail bonds furnished by the accused are discharged.