Decided on June 30,1997


Referred Judgements :-



KAMLESH SHARMA, J. - (1.)This appeal at the instance of State of Himachal Pradesh is against the judgment dated 11 -4 -1988, passed by Addl. Sessions Judge, Solan and Sirmaur Districts at Nahan, whereby the respondents were acquitted of offences under Sections 302, 452, 147 and 148 I.P.C.
(2.)The prosecution case in brief is that deceased Lachhman Dass and respondent Ram Chander were brothers. Deceased Lachhman Dass and his wife Lajwanti (PW -1) on the one side and respondents Ram Chander and his wife Darshani Devi on the other side had strained relations and were residing separately. On Diwali night intervening lst/2nd November, 1986 at about 2.30 A.M. respondent Darshani Devi came to the house of deceased Lachhman Dass and Lajwanti (PW -1) with loosened hair and raised hands posing as Goddess and demanded Dhoop from Lachhman Dass. As soon as Lachhman Dass came out of his house and asked respondent Darshani Devi that for which Goddess she was demanding Dhoop1, she caught hold of him from the neck and threw him on the ground. In the meantime, other respondents, including her husband respondent Ram Chander joined her and gave fist and leg blows to deceased Lachhman Dass. When Lajwanti (PW -1) raised hue and cry Ashok Kumar (PW -3), Rajinder, Jatinder and Sham Lal came on the spot and saved deceased Lachhman Dass from the clutches of respondents and brought him in his room. Thereafter, ail the respondents went to their respective houses. The further case of the prosecution is that deceased Lachhman Dass was taken to hospital at about 3 A.M. where he was declared dead. His dead body was brought to his house and when preparations for its cremation were being made the police came at 10 A.M. and recorded statement of Lajwanti (PW -1) on the basis of which F.I.R., Ext. PA, was lodged and further Investigation was conducted.
(3.)Post -mortem on the dead body of deceased Lachhman Dass was conducted by Dr M.L, Gupta (PW -5), who has produced his post -mortem report on record as Ext. PD, whose relevant observations are as under: - 1. External Appearance : Conditions of subject:.. The deceased moderately built and nourished, short statured, wearing Banyan, Swetor, shirt, underwear and Pyjama. Post mortem staining was present on the back from neck to thighs. Rigor mortis was present. The eyes were closed and congested. Pupils were dilated. The face was cyanosed. Bleeding was present on the mouth and nostrils and hands were half clenched. The tongue was swollen, but not protruding and was dark in colour. There was no discharge of urine faeces and seminal fluid. There were 7 crescentic marks produced by the finger nails which were brown, dry on the left side of the neck extending from the left angle of mandible to the mid clavicular line as shown in the diagram (as far as possible) and the distances amongst each other. There were crescentic marks 9 more on the left shoulder as shown in the diagram adjacent to the previous one. There were two more crescentic marks on the right shoulder one on the anterior aspect and one on the posterior aspect. There was a mark probably thumb 1.5 cm by 2 cm wide on the centre of the neck just below the cricoid cartilage. The area showed slight swelling as compared to the adjacent skin with fracture of two cartilages of trachea underneath it, The subcutaneous tissue underneath it showed ecchymosis." In the opinion of the doctor, deceased Lachhman Dass died of asphyxia caused by throttling. In his cross -examination, he has explained that time of death I shown in his report was given to him by the police. He has himself ascertained the time between the death and the post -mortem as within 24 hours for the reason that rigor mortis was present on the person of deceased Lachhman Dass which starts fading after 24 hours. He has further stated that there were no nail marks on the right side of the neck. He could not infer from the nail marks found on the left side of the neck as well as on the left and right shoulders whether these were of right or left hand or of male or female or of which size of hand. He has admitted that lot of pressure is required for throttling and explained that it is not must that throttling would cause mark of pressure on both sides of the windpipe. He has also admitted that there was no mark of violence on the right side of the neck of deceased lachhman Dass. In his opinion, so many hands were used for throttling the neck of deceased Lachhman Dass which might be 2,3 or 4 and the assailant could be on his front and on the back. He has further clarified that he did not find any of the teeth of deceased Lachhman Dass broken.

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