REPORTABLE                                                                         

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 553 OF 2002

State of H.P. …Appellant

Versus

Ram Krishan …Respondent

J U D G M E N T  

Dr. ARIJIT PASAYAT, J.

1. Challenge in this appeal is to the judgment of a Division Bench of the

Himachal  Pradesh High Court  directing acquittal  of the respondent.   The

Division Bench had disposed of two appeals, one by the accused and the

other by the State, both questioning correctness of the judgment passed by

learned  Additional  Sessions  Judge,  Mandi.  As  noted  above,  while  the

accused questioned his conviction for offence punishable under Section 302

IPC,  the  State’s  appeal  was  against  the  acquittal  in  respect  of  offences

punishable under Sections 452, 427 and 323 IPC so far as Respondent Ram

Krishan  is  concerned  and  also  questioning  acquittal  of  co-accused

Harminder.  The High Court by the impugned judgment affirmed the order

of acquittal as done by the trial court while also directing acquittal of the

respondent.

2. Background facts in a nutshell are as follows:

Laxmi Dutt (PW-1), resident of village Mandap in Tehsil Karsog was

running  a  tailoring  shop  at  the  material  time  in  village  Maghundi  at  a

distance of about one kilometer from his residential  house. Manohar Lal

(hereinafter referred to as the ‘deceased’) was his younger brother and was

running  a  shop  of  general  merchandise  at  Maghandi  in  the  business

premises of PW-1 in the morning and evening, while during the day time he

used to teach students of a nearby school. On 26.11.1998 at about 7.30 p.m.

when the deceased was  present  in his  aforesaid business  premises,  Ram

Krishan  (hereinafter  referred  to  as  the  ‘accused’)  and  Harmender  Singh

(hereafter  referred  to  as  'the  co-accused')  came  there  while  under  the

influence of liquor. They wanted to take more liquor at the said business

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premises  of  the  deceased.  They  asked  the  deceased  to  give  them some

eatables.  The deceased,  however,  asked the  accused persons  not  to  take

liquor in his business premises which infuriated them and as a result they

quarrelled with the deceased and slapped him. The accused persons also

threw the  goods  at  the  business  premises  of  the  deceased  helter-skelter.

When the deceased asked them not to indulge in such mischief, they asked

him to  get  lost.  Thereupon  the  deceased  went  to  the  houses  of  Pawan

Kumar (PW-5) and Dogar Ram residents of village Thaltu. The deceased

informed them about the acts and conduct of the accused persons and then

returned to his business premises along with PW5 and Dogar Ram, who is

elder brother of accused Harmender Singh. PW-5 and Dogar Ram requested

the accused persons not to commit the mischief in the business premises of

the deceased.  However, the accused persons asked them to get lost. The

deceased  then  went  to  his  house  and  informed  Laxmi Dutt  (PW-l)  and

Karam Dass (PW 6) and other persons present in the house about the acts

and  conduct  of  the  accused  persons.  Laxmi  Dutt  (PW-1),  Amba  Dutt

(PW2), Nanak Chand (PW3) and Preen Lal came along with the deceased

and reached the business premises at about 8.15 p.m.  They inquired from

the  accused  persons  as  to  why  they  had  picked  up  a  quarrel  with  the

deceased?  On  such  enquiry,  the  accused  persons  stepped  out  of  the

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business premises of Manohar Lal (deceased), and with a stone, hit on the

left side of his head and as a consequence, the deceased dropped dead at the

site where he had sustained injury with stone Ext. P-1 and rolled down the

hill-side upto a distance of about 50 feet. The accused persons thereafter

pelted stones on the other persons present there thereby causing simple hurt

to PW6 and Dogar Ram. On hearing the noise from the spot, Man Singh

(PW7) also came to the place of occurrence. He asked the accused persons

not to pelt stones and took them to their houses. PW-l, PW-7 and Khuba

Raid  went  to  the  house  of  Krishna  Devi  (PW-4),  Pardhan of'  the  Gram

Panchayat and informed her of the murder of Manohar Lal (deceased). She

accompanied them to the place of occurrence and inspected the dead body

of the deceased. Thereafter, PW-1, PW-4 and PW-7 went to Police Station,

Karsog and lodged FIR. Ext. PW-1/A under Sections 452, 323, 427, 302/34

of the Indian Penal Code against the accused persons and the investigation

in the matter  followed.  SHO, Harbhajan  Singh,  S.I.  (PW-13)  visited  the

place of occurrence and took the dead body of Manohar Lal in possession.

Photographs of the dead body and the place of occurrence were taken and

the developed photographs are Exts. PW-10/A-1 to PW-10/A-8. The report

Marg Exts. PW-13/B and PW-13/C were prepared and the dead body was

sent  for  post  mortem examination.  Stone  Ext.  PW 1  was  also  taken  in

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possession vide recovery memo. Ext.PW-4/1 and was sealed. Stone Ext. P2

was also taken in possession from the business premises of the deceased

vide recovery memo Ext. PW-4/B. The post mortem of the dead body of the

deceased was conducted by Dr. Girish (PW-14) and the post mortem report

issued by him is Ext. PW-14/A. As per opinion of PW- 14, the deceased

died due to the injuries to brain caused by the head injury.

Fourteen  witnesses  were  examined  to  substantiate  the  prosecution

version. PWs. 1, 2, 3, 5 & 6 were stated to be eye witnesses.  The High court

noticed that the injury could have been caused because of the fall and not

because  of  the  assault  made  by  the  respondent.  The  basis  for  such

conclusion was that  the injuries  noticed  on post  mortem clearly revealed

that there was a scope for the injuries having been sustained during the fall.

It was, therefore, held that the vital injury could not have been caused by the

accused Ram Krishan.

3. In support of the appeal learned counsel for the appellant submitted

that the conclusions of the High Court are purely based on conjectures.  

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4. Learned counsel for the respondent on the other hand supported the

judgment.   

5. It is to be noted that there is no dispute that the deceased died out of a

head injury.  PWs 1, 2, 3, 5 & 6 are eye witnesses and all of them stated that

the accused Ram Krishan hit the deceased on the left side of the head with

the stone and he rolled down.  Thus there was no material before the High

Court to come to a conclusion that the death occurred due to fall.  The High

Court came to a peculiar finding that it might be possible that before the

stone had hit the head of the deceased, he had slipped and had rolled down.

There was no material on record in this regard.

6. The High Court’s conclusion is that no one examined the body of the

deceased before it rolled down to ascertain whether he was alive or dead.  It

is relevant that all the eye witnesses had stated about the assault of the head

of the deceased by the accused with the stone.  Injury No. 9 was described

as the fatal injury.  At least five of the injuries were on the head, which can

be related to the assault by the stone and more particularly injury No. 9 viz.

the  fracture  in  the  left  temporal  region.  Since  the  High  Court’s  order  is

based on surmises and conjectures, it cannot be sustained and is set aside

and the order of conviction recorded by the trial court stands restored.  The

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respondent  shall  surrender  to  custody  forthwith  to  serve  remainder  of

sentence.

7. Appeal is allowed to the aforesaid extent.

...………….................................J.      (Dr. ARIJIT PASAYAT)              

…..................................................J.               (Dr. MUKUNDAKAM SHARMA)  

New Delhi, January 12, 2009  

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