STATE OF HIMACHAL PRADESH Vs. RAJINDER

JUDGEMENT

(1.) Nobody appears for the respondents. Mr. Anil Chauhan, Advocate consented to assist this Court as Amicus Curiae. The State is aggrieved by the judgment passed by the learned Sessions Judge, Sirmour at Nahan in Sessions Trial No. 30-ST/7 of 2001 acquitting the respondents who were charged for offences under Section 302 read with Section 34, IPC.

(2.) The case of the prosecution is that Sukh Ram was addicted to liquor and used to often drink with the accused. On 29.9.2000, he did not return home and therefore his son Suresh Kumar searched him in the Veterinary Hospital, his place of work. Being unsuccessful he then made a search in the house of his relatives. On inquiry from Narinder, he came to know that the deceased had taken a sum of Rs. 100/- from him and on further inquiry from Dwarka Devi and Ashok Kumar, he learnt that the deceased had consumed liquor on 22.9.2000 in the Dochi (hut) with Fanti Ram and Maan Singh. On 26.9.2000, Moti Singh, PW5 met Suresh Kumar, PW1 and told him that at about 7.00 P.M. on 22.9.2000 he had seen the deceased with the accused persons, who were under the influence of liquor and were talking loudly about elections in the Panchayat. Suresh Kumar, PW1 lodged a report regarding the fact that the deceased was missing. Long and short of the entire prosecution story is that the circumstance urged against the accused persons is that they were last seen with the deceased.

(3.) Post mortem was conducted by Dr. Piyush Kapil, PW3, he did not find any injury on the body of the deceased except on his skull. The circumstance relied upon by the prosecution for bringing home guilt to the accused persons is that they were last seen with the deceased in the house of one Shukru, where they had consumed liquor together. In these circumstances, he was a very important witness rather the main witness to have testified about the fact regarding the deceased having consumed liquor with him along with the accused. He has not been produced in evidence for reasons best known to the prosecution. The settled principle of law is that though the prosecution cannot be told or dictated to as to which witness is to be produced none the less the best witness/evidence ought to have been produced on record. Mere withholding the evidence is not by itself fatal to the prosecution case if the incident is otherwise established on record by other evidence. However, where the best evidence is withheld it would obviously lead to the conclusion that an adverse inference ought to be drawn against the prosecution. The law on the point is now well settled. In Swaran Singh and others v. State of Punjab, 1976 4 SCC 369the Supreme Court holds that: