STATE OF HIMACHAL PRADESH Vs. TENZIN LONDEY

JUDGEMENT

(1.) THE State appeals against the judgment of acquittal passed by the learned Sessions Judge, Shimla in Sessions Trial No. 30 -S/7 of 1997, holding that the respondents are not guilty of offences under Section 302 read with Section 34 of the Indian Penal Code.

(2.) IT is alleged that deceased Kelson and one brother of accused Tenzin Londey, who are Tibetan Nationals, had some quarrel with two Indian boys some time prior to 18.5.1997 which led to animosity between the deceased and the brother of accused Tenzin Londey on one side and the Indian boys on the other. On 18.5.1997, accused Tenzin Londey went to Tibetan Colony in Kasumpti looking for deceased Kelson whom he found in the monastery and asked him to accompany him to Chhota Shimla where two Indian boys were present so that the dispute/ misunderstanding between them could be resolved. The case which unfolds thereafter is that two witnesses PW1 Rakesh Kumar and PW -5 Chet Ram, purportedly saw accused Tenzin Londey and the deceased Kelson grappling with each other on the edge of a retaining wall adjoining the road and that in the course of this scuffle, accused pushed the deceased, who fell about 20 feet below and suffered fatal injuries. Two of the accused (the Indian boys) Raman Chauhan and Yogesh Verma drove away from the spot in their Maruti Van towards Sanjauli, while accused Tenzin Londey was overpowered by the police officials on duty, one at the Secretariat Gate and the other in the nearby Police Station at Chhota Shimla.

(3.) ON the question of involvement of accused Tenzin Londey, PW -1 Rakesh Kumar, who was a constable on duty on the gate of Police Station, Chhota Shimla, stated that on 18.5.1997, around 9.15 P.M. while on duty, he heard sound of a man falling and he rushed towards the site and saw the deceased lying on the road in front of Thakur Dairy. There is nothing in his statement to corroborate that he saw accused Tenzin Londey pushing the deceased from the edge of the retaining wall or that he saw them grappling. The testimony of PW -5 Chet Ram who was Security Guard at the Secretariat gate has been rejected on the ground that it was a dark night when the alleged fight was taking place and that such fight was going on for 5/10 minutes. The learned Court holds and rightly so that in the darkness no identification could be possible as to who was beating whom. The story as unfolded in his cross examination is that there was some fight going on between two boys, each was punching and pushing the other and they were changing sides. In the darkness, the identity of the accused Tenzin Londey could not be established. We affirm this finding. We cannot come to a different conclusion on the evidence on record. When the testimony of these two witnesses is read in conjunction, what emerges is that the deceased was seen lying in front of Thakur Dairy after having fallen down from the retaining wall adjoining the road. Only one witness namely PW -5 Chet Ram saw some kind of scuffle where he said that two boys who were pushing each other and changing sides during this quarrel, that is to say, at one point of time one boy was on the edge of the wall and at the other time, the other would be there, but being dark, he could not recognize who was who and who pushed whom. In these circumstances, it becomes difficult to hold that the deceased was actually pushed by Tenzin Londey. On the presence of other two accused, who were described as Indian boys, there is nothing on record to link them with their presence on the spot or their fleeing from the scene of occurrence.