1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 213 of 2002 Decided on June 21, 2011 __________________________________________________________ State of H.P. …Appellant. Versus Surender Singh. ...Respondent. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice V.K.Sharma, Judge. ¹Whether approved for reporting? For the appellant: Mr.R.K. Sharma,Senior Additional Advocate General with Mr.Rajinder Dogra, Additional Advocate General. For the respondent: Mr. Rajiv Rai, Amicus Curiae. Justice R.B. Misra,J. (Oral) Mr. Rajiv Rai, has been requested to assist this Court as amicus curiae on behalf of the respondent- accused and he has agreed to assist this Court. 2. The present Criminal Appeal has come up for adjudication after the grant of leave to appeal has been granted under Section 378 (3) of the Code of Criminal Procedure in reference to judgment dated 30.8.2001 passed by Learned Sessions Judge Solan, H.P., in Sessions Trial No.18-NL/7 of 2000, under Sections 302 and 201 of the Indian Penal Code, acquitting the alleged respondent- accused, in reference to FIR No.39 of 2000. 2 3. The prosecution case is that on 6.3.2000, accused Smt.Shiksha Kumari, had gone along with her co- villager, Smt.Ram Asri (victim-deceased) for cutting grass. However, in the evening, only accused Shiksha Kumari returned back, whereas, Smt.Ram Asri (victim-deceased) did not return. On being asked by the member of the family of the victim-deceased, accused Shiksha Kumari gave evasive replies. First she disclosed that Smt.Ram Asri (victim-deceased) had never accompanied her to the jungle. Thereafter, on further query, she disclosed that the victim-deceased had gone to visit her relations, however, on extensive enquiry, accused Shiksha Kumari told that Smt.Ram Asri (victim-deceased) had been caught and gripped by two men and one lady while cutting grass in the Khabra jungle and when victim-deceased was attacked, she fled away from the spot. The matter was reported to the police and FIR Ex.PZ/O was registered. However, the principal accused Himmat Giri @ Goldi @ Bhagwan was said to have illicit relations with accused Shiksha Kumari and such aspect was known to Smt.Ram Asri (victim- deceased), who had even warned Himmat Giri (deceased) not to visit village Kshambowal or the house of accused Shiksha Kumari, lest his legs would be broken. Because of this, deceased accused Himmat Giri found Smt.Ram Asri (victim-deceased) on 6.3.2000, while she was cutting grass 3 in the Khabra jungle, associated accused Surender Singh and gripped her and inflicted forcefully the blows with axe on her neck, arms, leg and other parts of the body. Consequently, Smt.Ram Asri (victim-deceased) suffered chop-injuries. 4. After investigation, respondents-accused were charged for the aforesaid offences. In order to prove its case, the prosecution examined as many as 39 prosecution witnesses, whereas, the accused through their statements under Section 313 of Cr.P.C., have denied the prosecution case. 5. PW.18 Dr.B.S. Dhiman, Medical Officer, examined the dead body of Smt.Ram Asri (victim- deceased) and noticed following injuries:- 1. A clean chopped wound present on left side face lower side one inch below away and below the angle of mouth to left side lateral aspect. Under lying mandible bone cut completely and obliquely. Underlying tissues behind the bone also cut. Major blood vessels, nerves, muscles in the neck also cut. Size 11 cms X 3 cms X 5 cm. incise. Dry blood clots are also present in the wound. Red coloured fluid was coming from the wound. Dry grass leave pieces are present on the surface of the wounds. 2. Clean chop wound is present on left side face and neck extending from in front of left pinna (ear), cutting the lower third of ear completely to the extreme lateral aspect of the neck. Underlying mandible bones also cut incompletely and other vital vessels of the blood of the neck, nerves and muscles also cut. Some clotted blood also present with watery fluid oozing from the wounds, size 9 cm X 2.5 cm X 4 cm. Dry grass leaves were present on the wound. 3. Clean chop wound present, left side lower part of neck 4 lateral and frontal aspect. Underlying major blood vessels, nerves and muscles are also cut. Underlying cervical vertebral fourth also cut/incised incompletely and also cutting the spinal cord partially. Blood clots and red fluid blood oozing. Size 10 cm X 5 cm X 6 ½ cm. 4. Clean incised wound present. Left side face below the angle of mouth. Clotted blood present on the wound. Size 3 cm X 2 cm X 1 cm. 5. Clean chopped wound present on the chin extending from just below lower lip to lower left part of chin. Underlying mandible bond completely cut. Dark and clotted blood present. Size 2.5 cm X 3 cm. 6. Clean incised wound present on front part of the neck. In the middle transversely placed underlying muscles, blood vessels, nerves and and tissues cut. Thyroid cartilage exposed. Clotted blood present. Size 10 cm X 3 cm X 1 cm. 7. Clean chop wound present lower part right side neck along with the clavicle bone. Clavicle bone also cut. Blood clot also present. Size 8 cm X 2.5 cm X 8 cm. 8. Clean incised wound present on right posterior aspect middle of forearm transversely placed. Blood clots present. Size 4 cm X 2 cm X 1cm. 9. Clean chopped wound present right side lower part of front of thigh. Obliquely placed. Muscles cut and exposed bones also cut. Blood clots present. Size 10 cm X 3 cm X 3.5 cm. PW.18 Dr.B.S.Dhiman, has however, opined that deceased had died due to multiple chopped wounds in the neck and cutting of the spinal cord by the chop wounds in the neck leading to spinal haemorrhagic shock. The weapon used for causing the injury was sharp edged and of heavy weight. On the same day i.e. 8.3.2000,PW.18 Dr.B.S. Dhiman also examined accused Shiksha Devi and found the 5 following injuries:- 1. Bandage was found present on the middle finger of the right hand. On opening the bandage a wound present on right side middle finger. 2 cm long obliquely placed. Some whitish medicine powder applied on the wound present. Some red colour fluid oozing from the wound. Nature of the wound cannot be given as the injury has already been treated by some private calumniation. 2. Scratch/abrasion was found present on left leg middle side. 6 cm long, brown scab present on the abrasion. 3. Another scratch mark/abrasion present below injury No.2 5 cm long brown scab present. 6. The prosecution witnesses, namely, PW.4, PW.5, PW.9 and PW.14 have been declared hostile. So far as prosecution witnesses PW.15, PW.22, PW.24, PW.27, PW.28, PW.34 and PW.35 were associated during investigation just to prove different links of the prosecution, which however were proved ultimately. 7. The entire prosecution evidence is based on circumstantial evidence and extra judicial confession made by Himmat Giri-Baba before PW.16, Sh.Shadi Ram. 8. PW.1, Sh.Bant Ram, has stated that no statement was given by any of the witnesses before the police, in his presence. PW.1 has also denied that accused Surender Singh gave statement in his presence to the police that he had concealed the axe in jungle Khabra and has also shown his ignorance about existence of the marks 6 on the axe or stains of blood on the same were of rust or of blood. 9. PW.2 Sh.Jagdish has stated that accused Shiksha Kumari disclosed to the children of Smt.Ram Asri (victim-deceased) that she had told her that she would be visiting some relations. PW.2 Sh.Jagdish has further stated that on asking, accused Shiksha Kumari, has stated that she had never gone to jungle with Smt.Ram Asri (victim- deceased). However, on further questioning, accused Shiksha Kumari has disclosed that Smt.Ram Asri (victim- deceased) had been caught and gripped by two men and one lady while Ram Asri (victim-deceased) was cutting grass in the jungle and when Smt.Ram Asri (victim- deceased) was attacked by those two men and one lady, she fled away therefrom. PW.2 Jagdish has further stated in cross-examination that on 6.3.2000, accused Shiksha Kumari and deceased Ram Asri were seen by him, while they were going to forest Khabra, for cutting grass. At that time, PW.2 was cleansing the utensils. 10. PW.3 Sh.Ram Murti, son of deceased Ram Asri, student of 10+2, has stated that on 6.3.2000, his mother Smt.Ram Asri (victim-deceased) went along with accused Shiksha Kumari to village Khabra for cutting grass but did not return back from the jungle and on asking by PW.3, 7 accused Shiksha Kumari told that Ram Asri (victim- deceased) had gone to some relations. On detailed enquiry, accused Shiksha Kumari told that two men and one lady gripped Ram Asri (victim-deceased) in the forest and she has been killed or abducted by those persons. Contradiction is emanating from the testimony of PW.2 and PW.3. As per testimony of PW.2 Sh.Jagdish, accused Shiksha Kumari had told that two men and one lady gripped Smt.Ram Asri (victim-deceased) and when she was attacked by them, accused Shiksha Kumari fled away, whereas, PW.3 Sh.Ram Murti has stated that accused Shiksha Kumari has divulged that two persons and one lady had killed Smt.Ram Asri (victim-deceased) or abducted her. PW.3 has further stated in cross- examination that when he was asking from accused Shiksha Kumari about absence of Ram Asri (victim- deceased), 20-25 persons were present at that time. 11. PW.4 Sh.Nand Raj had been staying with accused Himmat Giri-Baba, in the temple of Prakhandi Devi in Khabra Devi, however, PW.4 has turned hostile. 12. PW.5 Sh.Chhinder Kumar has shown his ignorance by saying that nothing used to be given to him by accused Shiksha Kumari to hand over the same to accused Himmat Giri-Baba. PW.5 has also not supported the prosecution case. 8 13. PW.6, Smt.Salochna, residing adjacent to the house of accused Shiksha Kumari, has stated that accused Shiksha Kumari was treating accused Himmat Giri as Baba at that time. Baba Himmat Giri used to remain under the influence of intoxicant when he used to visit the house of accused Shiksha Kumari. PW.6 has further stated that Ram Asri (victim-deceased) being president of 'Mahila Mandal' warned accused Himmat Giri-Baba that in case he revisited the village, his legs would be broken. In cross-examination, PW.6 Smt.Salochna, has also stated that whenever, accused Himmat Giri was going to accused Shiksha Kumari, he was not under the influence of intoxicant, however, such fact was not disclosed to anybody. Such matter was also not reported to the police or any other authority about Himmat Giri's visit. 14. PW.7 Sh.Maghi Ram has stated that on euqniry, accused Shiksha Kumari has denied that neither she nor Ram Asri (victim-deceased) ever went to Khabra forest. 15. PW.8 Sh.Bakhtwar Singh, PW.9 Sh.Harpal Singh and PW.10 Sh.Bhagat Ram, are not very material, as they have not supported the prosecution case to the expectation of the prosecution. 16. PW.11 Sh.Ram Asra has stated that bangles worn by accused Shiksha Kumari, were taken into possession vide memo Ex.PK, in his presence. PW.11 9 Sh.Ram Asra was not aware that the grass was cut from the spot. PW.11 has also no knowledge that the blood had fallen on the ground, while grass was not cut. PW.11 has also not supported the prosecution case. 17. PW.12 Kumari Shanti Devi, has stated that 3-4 days earlier to the occurrence, accused Shiksha Kumari, borrowed a sickle from her. PW.13 Sh.Surender Kumar had taken photographs. PW.14 Sh.Jagtar Singh has not supported the prosecution case by saying that nothing was recovered in his presence. Testimony of PW.15 Smt.Khemi Devi is casual in nature. 18. PW.16 Sh.Shadi Ram has stated that accused Himmat Giri-Baba met him on 11.3.2000 at village Sialba Majri, Kharar, as he was about to go to Baba Balak Nath at Hamirpur. Accordingly, PW.16 Shadi Ram accompanied him on 13.3.2000. On the following day i.e. 14.3.2000 they visited Naina Devi temple. On 15.3.2000, PW.16 started for Haripur Bawa near Barotiwala, where both met Surender Singh alias Jatt. Accused Surender Singh loaded a truck there at Bhud. That truck bearing No.4355 was destined to Mysore. Accused Himmat Giri-Baba and Surender Singh asked PW.16 Shadi Ram to accompany them to Mysore. As such, accused Himmat Giri-Baba, Surender Singh, his brother Avtar Singh, PW.16 Shadi Ram and driver Harpal as well as his brother Shankar started for 10 Mysore in the said truck. When they reached Indore, accused Surender Singh and his brother Avtar Singh alighted from the truck. PW.16 Shadi Ram, accused Himmat Giri and others were left for Mysore and reached Mysore on 22.3.2000, where they were arrested by Mysore police. PW.16 Shadi Ram and accused Himmat Giri, kept in judicial custody in Mysore Jail. In Mysore Jail, accused Himmat Giri-Baba confessed the crime before PW.16 Shadi Ram that he alongwith accused Surender Singh alias Jatt and one lady Shiksha Kumari committed murder of Ram Asri (victim-deceased) in a forest near Ksambowal village. As per testimony of PW.16, accused Himmat Giri- Baba has further confessed his illicit relations with accused Shiksha Kumari, which came to know to Ram Asri (victim- deceased), who had been objecting to it. PW.16 Sh.Shadi Ram has further stated that while being brought from Mysore by train, accused Himmat Giri-Baba became ill and had died because of continuous vomiting and passing of stool (dysentery). PW.16 Sh.Shadi Ram has further stated that he has one brother, who is bachelor and they have sold the entire land except the house. PW.16 has further stated that he met accused Himmat Giri-Baba only on 11.3.2000 in the house of one Shri Nirmal Singh, where PW.16 was doing whitewashing as labourer. 11 As per testimony of PW.16, Sh.Shadi Ram, accused Himmat Giri-Baba did not disclose about the occurrence of 11.3.2000 to 23.3.2000, when both were arrested by Mysore police, Himmat Giri-Baba disclosed only when he was lodged in jail on 23.3.2000. In the evening when both were in the judicial lock-up, accused Himmat Giri-Baba confessed before PW.16, however, PW.16 was not aware whether he has disclosed this fact to the police or not. When both were produced before the Magistrate, at Mysore, the Magistrate did not ask PW.16 anything about the confession or case. PW.16, Sh.Shadi Ram, also did not disclose anything to the Magistrate. PW.16, has however, further stated that Ex.PZ/A was not read over to him after being recorded by the police. 19. PW.21 Sh.Ved Prakash was taken by Shiksha Kumari to the spot, where dead body of Ram Asri (victim- deceased) was concealed under the stones and bushes. PW.22 Head Constable Kirpa Ram has lodged the FIR Ex.PZ/O. PW.23 LHC Romesh Chand has deposited the sealed sample parcels in Forensic Science Laboratory, Junga. PW.24 Constable Manoj Kumar is also not very material to support the prosecution case. PW.25 Sh.Maan Singh, husband of Ram Asri (victim-deceased), has not indicated anything positive in support of the prosecution case. 12 20. PW.26, Smt.Chameli Devi, has only stated that on 6.3.2000, accused Shiksha Kumari and Ram Asri (victim-deceased), went to fetch the grass from village Khabra to jungle. PW.26 Smt.Chameli Devi has further stated that initially accused Shiksha Kumari declined that she ever visited jungle, however, subsequently, she disclosed that when Ram Asri (victim-deceased) was overpowered by two men and one lady, she ran away from the spot. PW.26 has not witnessed accused Shiksha Kumari and Ram Asri (victim-deceased), going to jungle. PW.26, however, has also not affirmed that accused Shiksha Kumari was ever scolded by Ram Asri (victim-deceased) with regard to their relationship with each other. 21. PW.29 Head Constable Ranjit Singh has stated that accused Himmat Giri-Baba died at Manwar in Maharashtra and his dead body was taken to local police station, where legal formalities were completed. 22. PW.30 S.I Brij Mohan has stated that on 27.3.2000, while on the way back, accused Himmat Giri- Baba came across dehydration and ultimately died at Manwar in Maharashtra. PW.31 to PW.35 are not very material. 23. PW.36 ASI Vidya Chand has stated that he was led and guided by accused Surender Singh to Khabra forest from where he got discovered an axe from underneath the 13 stones in a nullah. The axe was stained with blood, thereafter, axe was wrapped and sealed with impression 'E'. PW.37 ASI Virender Kumar had made recoveries of turban Ex.P-43, pant Ex.P-44 and shirt Ex.P-45, vide memo Ex.PU. PW.38 Sh.D.D. Sharma, District Inspector of police to whom accused Shiksha Kumari disclosed about Himmat Giri-Baba and Surender Singh alias Jatt. 24. PW.39 Inspector M.P. Baam has lodged Rapat Rojnamcha Ex.PX and has also taken into possession blood stained earth, stones and leaves, in presence of Radha Krishan and Ram Asre and got accused Shiksha Kumari medically examined, where she was found an injury on middle finger of right hand and on one of her legs and Shiksha Kumari was arrested on 8.3.2000. PW.39 has however, has stated that Constable Kamal Chand had informed him at 1.30 P.M. itself regarding the location of dead body of Ram Asri (victim-deceased). There were 10-15 persons of the village of deceased on the spot, where dead body was lying. PW.39 has further stated in cross-examination that he does not remember whether the broken pieces of bangles belonging to accused Shiksha Kumari and Ram Asri (victim-deceased), were stained with blood or not. 25. As revealed by PW.32 Sh.Kashinath Ramchander Wagh, Tehsildar Nandgaon, District Nasik that 14 he has conducted the panchnama Ex.PW.32/A regarding death of one Himmat Giri @ Gioldi and recorded statement of one Shadi Ram (PW.16) Ex.PW.32/B on 28.3.2000. As per statement of Shadi Ram (Ex.PW.32/B), it appears that when PW.16 along with accused Himmat Giri-Baba was in truck No.4355, being driven by Shankar Singh, and they reached Mysore and were taking meal in one of the Restaurant (Dhaba), where they were arrested by Mysore Police and brought to the police station, where accused Himmat Giri alias Goldi disclosed to the Mysore police that he was having illicit relations with one Shiksha Kumari and he had been residing in one of the temple and on 6.3.2000, Himmat Giri-Baba along with accused Shiksha Kumari and Surender Singh, killed Ram Asri (victim-deceased) with an axe and had concealed her dead body underneath the grass. Subsequently, on 3.4.2000, Shadi Ram (PW.16) vide Ex.PZ/A, made a statement under Section 164 of Cr.PC, before Sub Divisional Judicial Magistrate, Nalagarh that accused Himmat Giri-Baba had told to Shadi Ram that he alongwith one girl and a Jatt had killed one girl. Accused Himmat Giri has also told that he was having illicit relations with Shiksha Kumari and this illicit relation was observed by Ram Asri (victim-deceased), for that reason she was killed. If Shadi Ram (PW.16) has disclosed this fact on 22.3.2000 to PW.32 Sh.Kashi Nath Ramchander Wagh that 15 accused Himmat Giri had already confessed his guilt before Mysore police on 22.3.2000 itself that he alongwith Surender alias Jatt and Shiksha Kumari, has killed Ram Asri (victim-deceased), however, such confessional statement was not admissible in an evidence, as the same was made before the police and the same hit by Section 25 of the Evidence Act. However, if such statement was made on 22.3.2000, therefore, there was no occasion to make another statement on 3.4.2000 before the Sub Divisional Judicial Magistrate, Nalagarh vide Ex.PZ/A, wherein PW.16,Sh.Shadi Ram has allegedly stated that Himmat Giri had confessed his guilt in Mysore jail. Two contradictions are emanating regarding confessional statement of Himmat Giri, which in our considered view, are not inspiring confidence, as such, the same are not trustworthy. 26. The recovery of axe, at the instance of accused Surender Singh alias Jatt, cannot be said to be conclusive that accused Surender Singh had inflicted injuries on Ram Asri / (victim-deceased). The statement of PW.36 ASI Vidya Chand reveals that at the instance of accused Surender Singh axe was recovered from jungle, but no role of accused Surender Singh was mentioned making him responsible for killing Ram Asri / (victim-deceased). No endeavour has been made by the prosecution to co-relate 16 the blood stains of axe with that of Ram Asri / (victim- deceased). Testimony of PW.16, Sh.Shadi Ram, indicates that accused Himmat Giri-Baba had confessed, in Mysore jail, on 23.3.2000, that he alongwith Surender Singh alias Jatt and Shiksha Kumari, killed one girl, is also not conclusive that Surender Singh and Shiksha Kumari were also responsible of killing Ram Asri / (victim-deceased). The statement of accused Himmat Giri does not indicate any role of Surender Singh alias Jatt and Shiksha Kumari. The statement in the form of extra judicial confession cannot be treated to be conclusive to hold Surender Singh and Shiksha Kumari guilty of the offence of killing Ram Asri / (victim-deceased). The statement utmost could be conclusive that Himmat Giri was responsible to kill Ram Asri / (victim-deceased) but in absence of any specific role or in absence of link with injuries and act of Surender Singh alias Jatt and Shiksha Kumari, they cannot be held guilty of the offence under Section 302 IPC beyond reasonable doubt that they were responsible to kill Ram Asri / (victim- deceased). Truly Ram Asri / (victim-deceased) died after sustaining multiple injuries, however, injuries cannot be co- related with the axe to have been inflicted at least by Surender Singh alias Jatt and Shiksha Kumari. 27. On analysis of the prosecution witnesses and materials on record, learned Sessions Judge has rightly 17 arrived at a conclusion that the prosecution has failed to prove its case beyond reasonable doubt. Keeping in view the inconsistencies, contradictions and improbabilities and keeping in view the last seen theory, it is not proved that accused Shiksha Kumari was seen in the company of Ram Asri / (victim-deceased). The confessional statement of accused Himmat Giri-Baba is also not conclusive to prove the guilt of other two accused. In our considered view also, the prosecution has failed to bring home the guilt to the accused and there is no scope of interference in the findings given by learned trial court. Accordingly, the present criminal appeal, being devoid of any merit, is dismissed. 28. The bail bonds furnished by the accused/respondents are hereby discharged. 29. We place on record our words of appreciation to Mr.Rajiv Rai, for his assistance to the Court as an amicus curiae. (R.B. Misra) Judge June 21, 2011 (V.K.Sharma) (Purohit) Judge