IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.231 of 2000. Decided on: November 25, 2010. __________________________________________________________ State of Himachal Pradesh. ……..Appellant. Versus Shamsher Singh. …..Respondent. Coram Hon’ble Mr. Justice R.B. Misra, J. Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant : Mr. R.K. Sharma, Sr. Addl. Advocate General with Mr. Rajinder Dogra, Addl.A.G. For the respondent : Mr. N.S.Chandel, Advocate, vice Mr. Rakesh Jaswal, Advocate. _______________________________________________________ Per SURINDER SINGH, J : The respondent was tried and acquitted for the offence punishable under Section 302 of the Indian Penal Code for alleged murder of Chuni Lal, which has been challenged in this appeal by the State. 2. The prosecution story in brief can be stated thus. Respondent Shamsher Singh was cousin of Chuni Lal (deceased). Being collaterals, they were in possession of a house consisting of two rooms, which was partitioned. One room fell in the share of deceased and another respondent Shamsher Singh. Whether reporters of the Local papers are allowed to see the judgment? - 2 - Both rooms had a common wall. Shamsher Singh wanted to renovate his portion in the house by removing the common wall which was objected to by the deceased. Ultimately, on 8.9.1998, an application Ex.PF was moved by the respondent before the Panchayat. Panchayat summoned both the parties. PW4 Madan Lal Pradhan and PW6 Krishna Devi, ward Panch visited the spot alongwith other members. After looking at and assessing the situation, respondent was asked to give his explanation before the Panchayat on 14.10.1998. In between, on 30th September, 1998, there was a marriage at Jawali. PW2 Parkasho Devi alongwith her son PW5 Kamaljit had gone there to attend it, whereas the deceased alongwith PW3 Sulekha Kumari her daughter-in-law, two children and her younger sister Kamlesh remained in the house. (ii) It is alleged that on 1.10.1998 at about 1 p.m., deceased Chuni Lal had gone to grazing his cattle outside near Railway line. During noon, PW3 Sulekha Kumari went to call him for the lunch. At that time, deceased was sitting on a culvert near the Railway line. The respondent was allegedly standing besides - 3 - him. He had asked the deceased whether he would leave the area over which the common wall existed, to which, deceased denied. On this, respondent allegedly dealt a ‘darat’ blow on the deceased. On receiving the injuries, he fell down and respondent gave other blows on his head. Thereafter, respondent threatened PW3 Sulekha Devi not to raise any alarm, lest he would kill her alongwith her children. Getting frightened, PW3 returned to her house and bolted herself inside the room alongwith her children. (iii) On the same day, around 5.30 p.m., PW2 Parkasho Devi wife of the deceased on her return noticed that her husband was lying injured near the culvert and many people had gathered there alongwith PW4 Madan Lal, Pradhan of the Panchayat. Police was informed. PW15 S.I. Salwinder Singh, Additional SHO, Police Station Nurpur reached the spot. The dead body was photographed, site plan was prepared and statement Ex.PE of PW2 Parkasho Devi was recorded under Section 154 of the Code of Criminal Procedure. She entertained suspicion that the respondent and his brother - 4 - Dalbeer Singh were responsible in committing the murder of her husband. Therefore, a ruqa was sent for the registration of the case, which culminated into FIR Ex.PU. (iv) PW15 S.I. Salwinder Singh took into possession blood stained earth and a stick lying nearby, in presence of the witnesses and the inquest papers Exts.PB and PC were prepared. The dead body was sent for the autopsy, which was conducted by PW1 Dr. M.K. Saxena, who issued postmortem report Ex.PD. On examining the dead body, the doctor noticed the following injuries:- “1. There was a deep curved (C.shaped) incised wound on left parietal region of skull, cutting the scalp and left parietal bone with avulsion of flap and laceration of braing material- other measurement- 20 cms. 2. There was an oblique muscle deep incised wound extending from right and mid eye blow, root of the nose and upper portion of the left cheek.- 15cms in length. 3. There was a curved ( C. shaped) muscle deep incised wound present over upper part of back of the neck. Outer measurement 17cm.” Nothing abnormal was found in thorax, abdomen and other parts of the body. In the opinion of the doctor, the cause of death was due to shock of haemorrhage on account of the head injury by a sharp edged weapon. Death was instantaneous and probable time between death and - 5 - postmortem was 12 to 36 hours. The body duly reconstituted was handed over to the police and it was further opinion that the injuries were anti mortem in nature and sufficient to cause death in the ordinary course of nature and these injuries could be caused by a weapon like ‘darat’. The clothes found on the dead body were sealed and handed over to the police. (v) The Investigating Officer PW15 aforesaid arrested Dalbeer Singh, but later released. Since the dead body was found near the culvert besides the Railway line, as such, Railway traffic police was informed and the case file was handed over to them on 2nd October, 1998 and further investigation was conducted by PW17 Inspector Puran Chand. (vi) It is also the prosecution case that on Ist October, 1998, at about 6.10 p.m., respondent had also confessed having committed murder aforesaid and a report Ex.PV was lodged to PW16 Inspector Kishan Chand, which was got jotted down by the Moharar Head Constable under his dictation. Vide Rapat Ex.PW, PW16 informed MHC Karam Pal of Police Station Nurpur, who in turn informed him that a case stands already registered with respect to the murder of Chuni Lal in Police Station. - 6 - (vii) The respondent was arrested by the said Inspector and handed over next day to HC Piar Singh of Police Station Nurpur. PW17 Inspector Puran Chand took into possession the shirt Ex.P10 of the respondent vide memo Ex.PR in presence of the witnesses. He also visited the village of the deceased and interrogated the respondent. Pursuant to the statement Ex.PG, recorded under Section 27 of the Indian Evidence Act, ‘darat’ the alleged weapon of offence was allegedly recovered and taken into possession vide memo Ex.PJ. (viii) Thereafter, he also recorded the statement of PW3 Sulekha Kumari on 3.10.1998, an alleged eye witness of the occurrence. Darat and the wearing apparels of the respondent were sent for the forensic examination and as per report Ex.PW19/A, it contained human blood, but was not sufficient for further examination. 3. Police had recorded the statements of the witnesses and on completing the investigation, challan was presented in the Court for the trial of the respondent. Dalbeer Singh though granted bail, was - 7 - kept in Column No.2 of the challan presented under Section 173 of the Code of Criminal Procedure. 4. Finding a prima-facie case for the aforesaid offence, the respondent was accordingly charge- sheeted, to which he pleaded not guilty and claimed trial. 5. To prove its case, prosecution examined its witnesses. The respondent was also examined under Section 313 of the Code of Criminal Procedure. He denied the circumstances, which were found attendant upon him and maintained his innocence. According to him, he was implicated on suspicion in the instant case. He stated that on Ist October, 1998, he had gone to Dharamshala to secure the anticipatory bail, by the time he reached near octroi post the police apprehended him and informed Police Station Nurpur. He denied having made any statement (Ex.PV) to the police. According to him, the story, which was attributed to him was the result of deliberations and consultation between SHO, Police Station Dharamshala and Nurpur. 6. The respondent was called upon to enter into his defence, but no evidence in defence was led. 7. The prosecution mainly relied upon the statement of PW3 Sulekha Kumari, the alleged eye witness - 8 - and also on the confessional statement recorded by the respondent before the police, in the form of report Ex.PV. Learned trial Court, after appreciating the above facts, jettisoned the prosecution evidence, accordingly, respondent was acquitted as it miserably failed to bring home his guilt. 8. Shri R.K. Sharma, learned Senior Additional Advocate General for the State forcefully argued that the learned trial Court did not appreciate the evidence of the alleged eye witness in the right perspective and wrongly discarded the confessional statement Ex.PV, recorded by PW16 Inspector Kishan Chand, thus, the case requires reappraisal and appreciation of the evidence in the right direction. 9. Shri N.S. Chandel, learned counsel appearing for the respondent supported the impugned judgment of acquittal and vehemently argued that the statement of PW3 Sulekha Kumari is not worth inspiring confidence nor she is a natural witness and the statement Ex.PV recorded by PW16 Kishan Chand in Police Station, Nurpur is not a legal evidence, rather it was manufactured by the police to frame the respondent. - 9 - 10. We have given careful consideration to the rival contentions of the parties and have thoughtfully scanned the evidence on record to reach at a right conclusion. 11. PW3 Sulekha Kumari is the ace witness of the prosecution. She is alleged to have witnessed the alleged occurrence. She testified before the Court during trial that her mother-in-law (PW2), husband (PW5) and sister-in-law had gone to Jawali to attend the marriage. She alongwith deceased father-in-law were in the house. Around 1 p.m., she had gone to call the deceased, who was grazing the cattle near the Railway line to have meals. On reaching there, she noticed respondent was standing there. He had asked from the deceased if he would leave the area over which, a common wall was existing. On its denial by the deceased, the respondent is alleged to have inflicted a ‘darat’ blow with a result of which he fell down. Thereafter he dealt with 2/3 more blows on the head of the deceased and she was also threatened not to raise any alarm, lest she would also be finished. She was frightened, returned to her house and remained bolted inside. Her mother-in-law returned home around 8.30 p.m. alongwith her husband (PW5). She also stated that she narrated - 10 - about the incident to her husband, but her cross- examination is worth noticing. She appeared to have behaved quite unnatural and indifferently not like a normal person. She admitted that Kamlesh Devi Panch had also a house in her vicinity. She did not tell about the said occurrence to her. She also stated that she even did not tell about the alleged occurrence to her mother-in- law when she reached during the night, nor her husband revealed it in the night to her, despite the fact that her mother-in-law had seen the dead body on the spot and knew fully well about the murder. She also stated that her husband did not visit any Panch or Pradhan on that very night to inform them about the occurrence and she also did not know whether in the late evening, police had arrived at the spot. Surprisingly, she was not informed by her mother-in-law or her husband that the police were present on the spot. She further blew hot and cold with the same breath by saying that she had seen the people going towards Railway line at about 3-4 p.m. and she even did not tell either of them anything or to the police present there. Even she did not make any effort to inform anybody in the village that her father-in-law be saved, more particularly, when she did not even know at that - 11 - time that her father-in-law was dead. It is also pertinent to note that she admitted that 2-3 days after the alleged occurrence till the police met her, neither she nor her husband told anybody about the said incident nor they informed the police telephonically. Pertinently, she stated that after 3rd or 4th day of the occurrence when the police came to her house, they took her to the shop of Parveen Kumar of the same village. She herself did not go to the police on the 3rd day to inform them, thus it is not understood as to how the police came to know that she was the only eye witness of the alleged occurrence. 12. Even the statement of PW2 Parkasho Devi her mother-in-law has to be taken into account with a pinch of salt. She had materially contradicted her earlier statement. She stated that her husband, daughter-in-law Sulekha Kumari and her two minor children were present in the house. Next day, she alongwith her daughter returned from Jawali and noticed dead body of the deceased near culvert with the injuries on his head. Police was also present there. She got recorded her statement Ex.PE. But, in cross-examination, she disowned the statement Ex.PE given to the police that her entire family had gone to attend the marriage and also that her - 12 - husband was alone in the house, but no explanation was given either by her or by the Investigating Officer as to why the said statement was recorded if she had not stated so. She further stated that when her son Kamaljit (PW5) reached, she remained alongwith him throughout the night and neither she nor her son went to meet any person and made any complaint about the incident and having witnessed the alleged crime by PW3 cannot be digested. 13. In the above circumstances, we are of the considered view that the statement of PW3 Sulekha Kumar is quite unnatural, inconsistent and not worth inspiring confidence, also for the reasons that continuously for three days, neither she nor her husband informed the police or the respectable persons of the village. Also more particularly to PW2 Parkasho Devi who had joined them during the same night in the house. 14. Further, as already noticed above, it is not understood as to how the police had come to know that it was only PW3, who had witnessed the alleged incident, therefore her testimony cannot be acted upon. 15. No doubt, the conviction can be maintained if the sole eye witness of the occurrence is found wholly - 13 - reliable. The corroboration is only required when he is partly reliable, but in the instant case, the conduct and statement of Sulekha Kumari is wholly unreliable, which cannot be made basis for convicting the respondent for the offence charged, which is of a very serious nature. 16. The prosecution next placed its reliance upon the statement Ex.PV, recorded by PW16 Kishan Chand. The perusal of the said statement shows that it was in the confessional form made to the police and is hit by Section 24 of the Evidence Act, thus it cannot be used against the respondent. At the worst, it can be seen and examined as a conduct evidence, but apart from the statement of PW16 Kishan Chand, there is no other witness who had corroborated this version. Further on its close scrutiny vis-a- vis the explanation rendered by the respondent, it makes the whole statement inadmissible even to use it as a conduct evidence. Further according to PW16 Kishan Chand respondent when appeared before him, he did not notice anything on the clothes of the respondent, but subsequently when he was handed over to the police it is not understood as to how his clothes were found blood stained. The possibility of planting such stains on his clothes as well as on the ‘darat’ cannot be ruled out for - 14 - the reasons that even the statement Ex.PV, which is alleged to have been recorded by PW16 Kishan Chand is also proved to be a got up document. 17. Thus, for the reasons aforesaid, we are of the view that the learned trial Court had rightly picked up the circumstances placed before it in evidence by the prosecution, appreciated and rejected the same. We find that the acquittal of the respondent is borne out from the record, therefore, it requires no interference, hence the appeal filed by the State sans merit, hence dismissed. 18. The respondent is discharged of his bail bonds entered upon by him at any time during the proceedings of this case. 18. Send down the records. (R.B. Misra), Judge. November 25, 2010. (Surinder Singh), (Pds) Judge.