STATE OF H P Vs. DALIP KUMAR

JUDGEMENT

(1.) State of Himachal Pradesh is aggrieved by the judgment dated 27.11.2012 passed by learned Additional Sessions Judge, Fast Track Court, Kangra at Dharamshala in Sessions Trial No. 6-P/VII/2011, whereby the respondent Dalip Kumar(hereinafter referred as to the 'accused') has been acquitted of the charge under Section 302 of the Indian Penal Code framed against him with the allegations that on 26/27.10.2010 he caused death of Arvind Goswami by inflicting blow of pickaxe (Gainti) and thereby committed the offence punishable under Section 302 of the Indian Penal Code.

(2.) The legality and validity of the impugned judgment has been questioned on the grounds inter-alia that cogent and reliable evidence produced by the prosecution has erroneously been discarded without assigning any reasons. Therefore, the acquittal of the accused is stated to be in utter disregard of material evidence available on record. The testimony of PW-1 Ankush Kumar and his father Chandersheel that accused confessed his guilt before them on 26.10.2010 and thereafter fled away from the spot is not appreciated at all. The extra judicial confession so made by the accused and duly proved on record in accordance with law has also not been appreciated at all. The findings that PW-1 was neither Panch or Pradhan of Gram Panchayat nor had any acquaintance with the accused, there was no occasion to the latter to have confessed his guilt before him nor he had expected from the said witness to save him from his prosecution, are erroneously recorded. The trial Court has allegedly failed to appreciate that irrespective of the accused an outsider was working as labourer in the house under construction of PW-1 and his father PW-8 at village Gandhar, District Kangra, hence was known to them is also ignored. Both PW-1 and PW-8 rather were the best persons before whom the accused could have confessed his guilt with the expectation that they may save him from his prosecution. The testimony of PW-9 Jugal Kishore and PW-10 Purshotam Chand qua the disclosure statement Ext. PW-9/A and the recovery of pickaxe Ext. P-1, pursuant to the same has also been misconstrued. Learned trial Court has also failed to appreciate the evidence as has come on record by way of their testimony that the pickaxe, weapon of offence was recovered at the instance of accused. The medical evidence as has come on record by way of testimony of PW-2 Dr. Vinay Mahajan that the blow as was on the head of deceased could have been caused with pickaxe, Ext. P-1 has also been ignored erroneously. The findings that the pickaxe when produced before the doctor PW-2 to obtain his opinion was not stained with blood, are contradictory to the evidence available on record as according to the appellate-State the Court below has failed to appreciate that non-mentioning of such facts by the doctor in the post-mortem report is not fatal to the prosecution case. The factum of PW-1 and PW-8 have corroborated the version of each other and they had no enmity to implicate the accused falsely in this case is also not taken into consideration.

(3.) The occurrence allegedly has taken place on 26.10.2010 during the night time at village Gandhar in the under construction house of PW-8 Chandersheel and took away the life of Arvind Goswami, the deceased, resident of village Lakhanpur, Post Office Navinpur, Police Station and District Jamuhi (Bihar). The allegations against the accused again a fellow villager and colabourer of deceased are that, it is he who killed him by way of inflicting the blow of pickaxe, Ext. P-1 when the deceased was under the influence of liquor and allegedly quarreled with the accused. As per further case of the prosecution, the accused along with deceased and one Avdesh was engaged as labourers by PW-1 and PW-8 to execute work of laying marvel in their house under construction at village Gandhar. On the fateful day, Avdesh came to the old house of PW-1 and PW-8 to have curd from them at 9.00 p.m. Behind him accused also came there. They both watched programme on television for a while. After sometime, the complainant went to the under construction house in the village along with accused Dalip Kumar and his fellow labourer Avdesh. On the way, when they were near Radha Krishan temple, accused told PW-1 that deceased under the influence of liquor started hurling abuses to him and also quarreled and as he did not stop hurling abuses and quarreling with him despite request made, he killed him. On this, PW-1 returned to the old house along with accused and Avdesh. There he apprised his father PW-8 Chandersheel about the disclosure so made by accused Dalip Kumar. On this, he (PW-1) his father Chandersheel and his cousin Sanjeev Kumar accompanied by the accused and Avdesh went to the house under construction. PW-8 asked the accused to open the door. The accused told him that door is open. They all entered inside the house to see deceased Arvind Goswami. The accused who was standing outside, however, fled away towards nearby fields. In the room, they noticed the dead body of Arvind Goswami covered with white coloured printed Chaddar and blood oozing out of the wound on his head. On seeing Arvind Goswami, he was found to have already expired. They tried to search the accused, however, he was not available. On this PW-8 had informed Purshotam Chand (PW-10), Pradhan Gram Panchayat and also PW-9 Jugal Kishore, Ward Panch.