IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr. Appeal No. 444 of 1996 Date of Decision : April 08, 2010 State of H.P. …Appellant. Versus: Netar Singh & Ors. …Respondents. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant: Mr. Vivek Thakur, Addl. A. G. with Mr. Rajesh Mandhotra, Dy. A.G. For the respondents : None Deepak Gupta, J. (Oral). This appeal by the State is directed against the judgment dated 29.12.1995 delivered by the learned Addl. Sessions Judge, Nahan, Distt. Sirmaur, in Sessions Trial No. 19- N/7 of 94, whereby he acquitted the accused of having committed offences punishable under Sections 302 & 201 read with Section 34 of the Indian Penal Code. The prosecution case in brief is that deceased Champa Devi was married to accused Netar Singh. Admittedly, this was the second marriage of Champa Devi. According to the 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 prosecution the accused Netar Singh ill-treated the deceased Champa Devi and contracted a second marriage with one Shanti and thereafter handed over the deceased Champa Devi to his elder brother Khewta Ram. According to the prosecution on 15.4.1993 accused Netar Singh with the help of other co- accused committed murder of Champa Devi. However, the accused persons tried to show that the deceased had died a natural death. Information regarding the death of Champa Devi was given to her father Jiwan Singh (PW-1). Her sisters Dharmi Devi (PW-3) and Kamla Devi (DW-1) reached before the cremation of the deceased. However, the father did not reach the village of the accused and the deceased was cremated in the evening. Jiwan Singh suspected that his daughter had been murdered by the accused since the accused was ill-treating his daughter. Therefore, the complaint was lodged. During the course of investigation, the prosecution found that the deceased had been murdered by the accused Netar Singh. Statements of two witnesses PW-2 & PW-3 were recorded under Section 164 Cr.PC by PW-9 Sh. D. S. Khennal, the then Addl. Chief Judicial Magistrate at Paonta Sahib, in which statements these witnesses had stated that they had seen the accused beating and throttling the deceased. On this basis, the challan was filed in Court against the accused. During the course of trial none of the independent witnesses supported the prosecution case and in fact one of the sisters appeared as 3 defence witness and, therefore the accused was acquitted. Hence the present appeal. The father of the deceased Jiwan Singh appeared as PW-1. His testimony is that his daughter after leaving her first husband started living with the accused Netar Singh who had enticed her. According to the father thereafter Netar Singh accused married another lady Shanti, daughter of Sabla Ram and, therefore, started ill-treating the deceased Champa Devi and handed her over to his brother Khewata Ram. According to him, on 16th April, one Atma Ram came to him in the morning and told him that his daughter Champa Devi had died and he should go to her village. He reached there at about 6’0 clock. By that time the deceased had cremated. Since his daughter was not suffering from any ailment, he suspected foul play and did not believe the story of the accused persons that she had suffered a fit and died. He lodged a report Ext.PA on the basis of which FIR was lodged. In cross-examination he admits that Atma Ram reached his house at 11.00 a.m.. PW-3 his daughter has stated that it takes about 3 hours to travel from the village of this witness to the matrimonial house of the deceased. Once the father was informed by 11’O clock about the death of his daughter, he should have left immediately. There is no plausible explanation as to why he did not leave till afternoon and only reached the house of the accused at about 6.00 p.m. Though in the examination-in-chief this witness stated that accused Netar 4 Singh had enticed his daughter Champa Devi, in cross- examination he admitted that he had received Rs.2000/- as “Reet” (bride money) from the accused. It is, therefore, obvious that the father was not only in the knowledge of the relationship between the deceased and the accused but had taken active participation in this traditional form of marriage, based on the custom prevalent in the area. He also admitted in cross- examination that his daughter had refused to come and live in his house saying that she was quite happy in the house of Netar Singh. Other than the bald allegation of this witness, there is no other material on record to show that the accused had abandoned the deceased or had handed her over to his elder brother. PW-3 Dharmi Devi, sister of the deceased reached before the cremation. According to her she saw bluish marks on the ears and blood in the eyes of the deceased. She also states that 10 to 15 other persons from her village had gone to the village of the accused on learning about the death of the deceased. Her father-in-law was also one of the persons who had accompanied her. When confronted as to why she kept silent she came up with the explanation that she had become unconscious on seeing the dead body of her sister and therefore does not know anything. Surprisingly this witness stated that she did not inform anybody about the injuries which she noticed on the person of the deceased for 2-3 days and it is only 5 thereafter that she informed her father about the injuries she had noticed. The defence has examined Kamla Devi, another sister of the deceased as DW-1. She stated that on coming to know about the death of her sister Champa Devi she came to the house of the accused and placed a shroud on the dead body of her sister. She further stated that the in-laws of Champa Devi waited for her father to arrive for cremation till late in the evening but he did not turn up. At about 6.00 p.m. the dead body was taken for cremation. She also stated that neither she nor her sister PW-3 suspected any foul play in the death of Champa Devi. In cross-examination, she stated that Champa Devi used to suffer fits earlier also. Statement of Kamla Devi, real sister of the deceased totally demolishes the version of the prosecution. She did not find any injury on the dead body nor suspected any foul play. The death took place in the summer month and as per practice prevalent in the villages, a dead body is normally not kept over night. Therefore, there is nothing unusual in the body being cremated in the late hours of evening especially in view of the fact that the death had occurred almost 18 hours before, since the deceased had died late in the night or in the early hours of the morning or in the night intervening 15th/16th April. PW-2 & PW-8 were the alleged eye witnesses who made statements before the PW-9 that they had gone to the 6 house of one Sunder Singh to partake in a feast. Both these witnesses, PW-2 & PW-8 were given food which they took to the house of PW-8 Shanti Ram alias Sant Ram. According to the statements (Ext.PB & Ext.PG), when these two witnesses were present in the house of Sant Ram (PW-8) they heard shouts of a lady shouting “Aray Baba bachao”. When they went to the side of a khala (water pond) they saw that the accused Netar Singh had caught the deceased Champa Devi by her neck and had placed his knee on her chest. According to this statement, the witnesses recognized Netar Singh in the light of a torch but he ran away after seeing them. As far as PW-8 is concerned he stated that he made the statement before the Magistrate under police pressure. However, PW-2 stated that he had not made the statement to the Magistrate as read out to him. In cross- examination by the accused, he accepted the suggestion that he had been tutored by the police and given the statement as desired by the Investigating Officer. As far as PW-2 is concerned, no reliance can be placed on his statement, since he has virtually given three different versions of the incident. His first version before the Magistrate, the second version in Court and third version is that he was pressurized by the police to make the statement. No doubt the learned Magistrate had followed the proper procedure for recoding the statements of the witnesses under Section 164 Cr.PC. However, we cannot loose sight of the fact that both these witnesses belonged to that strata of society 7 where it was not difficult for the police to exercise undue pressure on the witnesses. In Court, these witnesses on oath have clearly stated that they made the statements recorded under Section 164 Cr.PC under pressure by the police. It would not be out of place to mention that both these witnesses were produced before the Magistrate for recording of the statements on 7.6.1993 and the learned Magistrate asked them to come next day for recording of the statement. Where did these two witnesses spend night? If they were with the police during the night, it would not be unreasonable to presume that they had been pressurized by the police. In any event, these witnesses had turned totally hostile. Though the prosecution had cross- examined these two witnesses in detail, nothing substantial could be extracted in their cross-examination. Therefore, no reliance can be placed on their statements. In view of the above discussion, we find that the learned trial Court was justified in acquitting the accused. There is no merit in the appeal which is accordingly dismissed. The bail bonds are discharged. ( Deepak Gupta ) Judge. ( Sanjay Karol ), Judge. April 08, 2010. (rana)