IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.: 62/1998 Decided on: 25.2.2010 _____________________________________________ State of Himachal Pradesh. …Appellant. Versus Dinu Ram and another. …Respondents. ________________________________________________________ Coram: Hon’ble Mr. Justice Surjit Singh, Judge. Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 yes. For the Appellant : Mr. Ramesh Thakur, Assistant Advocate General. For the Respondents : Mr. Rajnish Maniktala, Advocate. _____________________________________________________ Surjit Singh, J (oral). This appeal by the State is directed against the judgment dated 14.3.1997 of the learned Sessions Judge, Kangra, whereby respondents who were tried for offence under section 302 read with section 34 of the Indian Penal Code, have been acquitted. The prosecution case, as per material on record, may be summed up thus. Deceased Rattan Chand and the respondents are residents of the same village i.e. village Bhadher, Tehsil Baijnath, District Kangra. It appears that the deceased was related to respondent Dinu Ram. On 1.7.1995, respondent-Dinu Ram is 1 Whether reporters of the local papers may be allowed to see the judgment? . 2 alleged to have taken deceased Rattan Chand from latter’s house to his own house and from there to the house of second respondent-Naukar Ram. There, they alongwith PW-2 Bhikham Ram started consuming liquor. In the course of drinking bout, deceased Rattan Chand and respondent Dinu Ram happened to exchange hot words upon which respondent-Dinu Ram pushed deceased Rattan Chand and then respondent-Naukar Ram picked up a stone lying in the house and hit deceased Rattan Chand on his head with a great deal of force. Respondent-Dinu Ram also hit the deceased with very same piece of stone on the head. Deceased was then carried by both the respondents to a Khud. It was thrown into the Khud. PW-2 Bhikham Ram followed them. Respondents threatened him that in case he informed anybody about the killing of deceased Rattan Chand, he would also meet the same fate. The dead body was spotted by a lady named Jhinjri Devi on 3.7.1995 in the evening. Police was informed on the same day. Police visited the spot and conducted inquest. Inquest report is Ex. PW-13/A. The dead body was taken to Sub Divisional Hospital, Palampur for post-mortem examination where PW-1 Dr. Baldev Kumar conducted the post-mortem. He noticed the following three ante-mortem injuries on the dead body: 1. “Ante mortem laceration of 2x1x ½ inches over right occiput region with fracture of the right occiput bone. 2. Ante mortem multiple bruises over whole of scalp (patient was bald). These bruises over frontal and temporal area. Bruises were bluish green in colour. 3 3. Ante mortem bruise (bluish green colour) over the right chest mid axillary line. There were not marks over the neck.” He gave the opinion that cause of death was irreversible coma due to head injury with Haemo-pheumothorax asphyxia. On 7.8.1995, PW-5 Magji Ram, brother of the deceased, made a statement under section 154 of the Code of Criminal Procedure Ex.PW-5/A to Vinod Kumar, Sub Inspector (PW-13) that he had been inquiring into the matter at his own level and had come to know that on the night of 1.7.1995, respondent Dinu Ram had been consuming liquor in the company of the deceased at the deceased’s house till mid-night and that Dinu Ram had offered to pay Rs. 20-25 thousand after the recovery of the dead body to the wife of the deceased, if the matter was not reported to the police. Police investigated the matter. During the course of investigation, PW-2 Bhikham Ram made a statement under section 164 of the Code of Criminal Procedure Ex.PW-14/B to the Judicial Magistrate. As per this statement, the deceased was done to death at the house of Naukar Ram in the manner aforesaid. Police recorded the statement of PW-3 Lalita Kumari, daughter of the deceased, per which, Dinu Ram had been consuming liquor in the company of Rattan Chand deceased at the latter’s place during the night and then he took Ratthan Chand along to his house. On completion of the investigation, report under section 173 of the Code of Criminal Procedure was filed in the Court of concerned Judicial Magistrate, who after complying with the requirement of section 207 of the Code of Criminal Procedure 4 committed the case to the Sessions Court. Learned Sessions Judge charged both the respondents with an offence under section 302 read with section 34 of the Indian Penal Code. On their pleading not guilty, they were put on trial. Prosecution examined a number of witnesses, but it mainly relied upon the testimony of PW-2 Bhikham Ram, PW-3 Lalita Kumari and PW-6 Ishwar Dass. Learned trial court did not believe the prosecution version and concluded that conviction of the respondents for offence of murder with the aid of section 34 of the Indian Penal Code could not be recorded on the basis of the evidence adduced by the prosecution as the same was inconsistence and contradictory. Learned trial court also disbelieved the prosecution version on account of unexplained long delay of more than a month in lodging the report. We have heard the learned Assistant Advocate General and the learned counsel for the respondents and gone through the record. Deceased Rattan Chand had allegedly been taken away to his house by respondent Dinu Ram from deceased’s house on 1.7.1995 and thereafter he was not seen alive by his family members. Only his dead body was recovered on 3.7.1995. Accordingly to the prosecution, Lalita Kumari, daughter of Rattan Chand, was awake when respondent Dinu Ram took the deceased Rattan Chand to his house. When Rattan Chand did not return home on 1.7.1995 or even on the next two days, report was supposed to have been lodged by the members of his family about 5 his having gone missing, especially when the case of the prosecution is that respondent-Dinu had taken him away from his house in the presence of his (deceased) daughter PW-3 Lalita Kumari. Lalita Kumari made a statement to the police only after lodging of the FIR on 7.8.1995. Statement of Lalita Kumari is not only rendered suspicious on account of the long delay, as aforesaid, but is also contradicted by the testimony of PW-2 Bhikham Ram. This witness stated that on the evening of 1.7.1995, when he was passing by the house of respondent-Dinu Ram, the latter called him and asked him to join him for liquor. He stated that since he was carrying some medicine for his ailing wife, which was required to be administered to her, he told Dinu Ram and also respondent-Naukar Ram, who too was present there, that he would be joining them after delivering the medicine to his wife, upon which, both the respondents also proceeded towards the village accompanying him. He then stated that when after delivering the medicine at his place he was returning to the house of Dinu Ram and reached near the house of deceased Rattan Chand, both the respondents and Rattan Chand met him outside the house of Rattan Chand and they all went to the house of respondent Dinu Ram to take liquor, but Dinu’s wife did not open the door. They all then went to the house of Naukar Ram. In the testimony of PW-2 Bhikham Ram, it has not come as to at what time the respondents and deceased and he himself went to the house of Naukar Ram, but in the statement under section 154 of the Code of Criminal Procedure Ex.PW-14/B, the time is 6 recorded as 8 or 9 P.M. That means, deceased Rattan Chand went with respondents and Bhikham Ram around 8 or 9 P.M. to the house of Naukar Ram where he was allegedly done to death in the course of drinking bout. If it is so, the testimony of Lalita Kumari (PW-3), daughter of the deceased, that her father Rattan Chand was taken by Dinu to his house at 12.00 in the night cannot be believed. If, Lalita Kumari’s version is believed that Rattan Chand was taken away by Dinu to his house around 12.00 in the night that would mean that Bhikham’s version of the deceased having been hit with a stone at Naukar’s house during drinking bout around 11.00 P.M. is not correct. Otherwise also, PW-2 Bhikham Ram never made any statement to the police or to any respectable person of the area about the incident till his statement was recorded under section 164 of the Code of Criminal Procedure on 1.9.1995 by a Magistrate. Therefore, the delayed version given by Bhikham Ram to the Judicial Magistrate and also his testimony in the court during the course of trial cannot be acted upon, unless corroborated. There is no corroborative evidence at all. PW-6 Ishwar Dass stated that about two months after the occurrence, respondents confessed to him in the presence of Pradhan Gram Panchayat, Nikru Ram and one Hans Raj that they had killed the deceased and asked him to intervene to get the matter compromised with the wife of the deceased. Sh. Nikru Ram, Pradhan and Hans Raj have not been examined by the prosecution to seek corroboration to the testimony of Ishwar Dass (PW-6). The 7 testimony of this witness does inspire confidence because in the cross-examination he stated that he did not disclose the fact of the respondents’ confessing the killing to anybody for 22 days. In view of the above stated position, we do not think this is a fit case for interfering with the judgment of acquittal. Hence, the appeal is dismissed. (Surjit Singh), J (Rajiv Sharma), J 25.2.2010 *awasthi*