STATE OF HIMACHAL PRADESH Vs. AMIT DIWAN

JUDGEMENT

(1.) The present appeal is preferred by the appellant under Section 378 of the Code of Criminal Procedure assailing the judgment of acquittal dated 27.11.2012, passed by the learned Sessions Judge, Kangra at Dharamshala (H.P.), in Sessions Case No.7-K/VII-2007, whereby the learned Court below has acquitted the accused respondent (hereinafter to be called as the 'accused'), under Sections 304, 341 and 427 I.P.C.

(2.) Briefly stating the facts, as per prosecution story giving rise to the present appeal, are that on 24.7.2006, at 12.10 P.M., the complainant made a complaint before the Station House Officer, Police Station, Kangra, against the accused alleging that the accused was carrying out unauthorized construction in their shop by erecting a wall on the back portion of the shop. The complainant and his father noticed the same on 24.7.2007 at 6.00 A.M. and thereafter the complainant and his father made a complaint at Police Station, Kangra at 6.30 A.M. on the same day.

(3.) As per the complainant, when he and his father returned from the Police Station and reached at the spot, the accused threatened the father of the complainant to do away with his life and also pushed the father of the complainant, as a result of which, the father of the complainant had fallen down. The froth came out from the mouth of the father of the complainant and he was taken to the hospital for treatment and was kept in the ICU, hence, suitable action against the accused was sought by the complainant. On such complaint, ASI Karam Deen along with other police officials was deputed to Hospital. Karam Deen returned to the Police Station at 2.30 p.m. and made a report, Ex.PW-3/B, to the effect that the Medical Officer of Balaji Hospital had opined that injured Brij Kishore was unable to make statement because he was unconscious. It has been alleged that at about 5.30 p.m. on the same day, the complainant (Rohit Diwan) informed the police, Police Station, Kangra, telephonically about the death of his father (Brij Kishore), in Balaji Hospital, Kangra and thereafter they removed the dead body of the deceased to their house, on which report, Ex.PW-4/A, was recorded. The said intimation attracted the commission of offence punishable under Section 304 IPC and accordingly FIR, Ex.PW-12/B, was registered against the accused and investigation was entrusted to S.I./Addl. SHO, Gurdas Ram, who visited the house of the complainant on 25.7.2006 and filled the inquest papers and also got the post-mortem examination conducted. In the post-mortem report, the Medical Officer opined that the deceased had died of asphyxia due to coronary arteries blockage of heart and enlargement of heart under the circumstances of earlier recent quarrel and mental tension, which ultimately likely to cause death. During investigation, clothes worn by deceased, including blood stained shirt, were took into possession in a sealed parcel and spot map was also prepared. It has further been alleged that earlier the complainant had lost his mental balance due to the death of his father and immediately, he could not have narrated the entire episode and subsequently, during investigation, he made statement that since 2½ years, his father was heart-patient and this fact was also known to Amit Diwan (accused) relatives and neighbourers. He also reported that the deceased and father of the accused were holding the joint properties, including five shops located on National Highway and the building was known as "Bank-Building". It has been alleged that a joint path was kept by the side of last room, for access to first floor through stairs, which path was blocked by the accused by erecting a brick wall. It has also been alleged that on the day of occurrence, at 8.30 a.m., the complainant along with his mother, namely Vijay Laxmi and deceased had gone to the spot to make inquiries from the accused about the erection of the wall. On such inquiry, the accused threatened his father and also pushed him, who fell down and subsequently died in Balaji Hospital. The Investigating Officer, during the investigation, took into possession the treatment summary of the deceased, as well as, the record pertaining to heart ailment of the deceased from his son/complainant. The complainant also produced the copies of some F.I.Rs. registered against the accused on earlier occasions. Statements of the witnesses were also recorded under Section 161 Cr.P.C. and on completion of investigation, final report under Section 173 Cr.P.C. was prepared and presented in the Court for trial.