IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 522 of 2002 Date of Decision 2nd August, 2011 ________________________________________________________ State of H.P. ….Appellant Versus Khialo Ram ….Respondent. ________________________________________________________ Coram The Hon’ble Mr. Justice R.B. Misra, J. The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 ________________________________________________________ For the Appellant: Mr. R.K. Sharma, Sr. Additional Advocate General. For the Respondent: Mr. Anup Chitkara, Advocate. ____________________________________________________________ R.B. Misra, J(oral) The present criminal appeal has come up for consideration after leave to appeal has been granted under Section 378 (3) of the Code of Criminal Procedure, against the judgment dated 23.5.2002 passed by the learned Sessions Judge, Chamba in Sessions case No. 11 of 2000, acquitting the 1 Whether Reporters of Local Papers may be allowed to see the judgment? 2 accused/respondent for offences under Sections 302 and 201 IPC in reference to FIR No. 70 of 1999. 2. The prosecution case is that the complainant Bido Ram, son of Rihkia made a complaint on 22.10.1999 at around 9.45 PM that his younger sister Premo Devi who was married to accused Khialo Ram 25 years back and had three sons from the wedlock. On 22.10.1999 at around 5.30 PM, when the complainant was present in his house, Gahlo Ram, Babu Ram and his wife Nimmo Devi came there and told him that his sister Premo Devi has been killed by his brother-in- law/accused Khialo Ram by giving a blow with a danda at about 9 AM. On inquiry being made by the complainant from his brother Amar Singh he came to know that his sister Premo Devi, has been killed by the accused Khialo Ram. A case was registered and investigated. The respondent/accused was charged for offences under Sections 302 and 201 IPC. 3. In order to prove its case, the prosecution has examined as many as 16 witnesses, whereas in his statement under Section 313 Cr.P.C., the accused/respondent denied the prosecution case. 4. (PW-1)/Sahbo Ram, the real younger brother of the accused, has stated that on 22.10.1999 at 3 around 9 AM while working in his house, he heard shriek emanating from the house of the accused, however after going to the house of the accused he found that Premo Devi/victim was lying dead on the floor of the kitchen and blood was oozing out from her ear. The accused was not present there. Thereafter on raising hue and cry, people gathered there. The accused also reached after about 15-20 minutes from the fields and started weeping. The parents of the deceased were also informed. The statement of PW-1 was corroborated by his statement made under Section 161 Cr.P.C. as such he was declared hostile. In cross- examination, PW1 has stated that the accused had gone to his fields at about 8.30 AM. PW1 had asked his brother Babu Ram that parents of the deceased should be informed and accordingly they were informed by him. PW-1 also stated in cross-examination that accused was having good relations with his wife/deceased Premo, when the deceased once had fallen ill, the accused has looked after her well without leaving her alone. Even on seeing dead body of the victim, accused could not control his emotions and started weeping. 4 5. (PW-2)/Babu Ram, the real brother of the accused has stated that on 22.10.1999 he had gone to the place of his work at Goli. However, he was informed by his son Ashok Kumar that deceased Premo was very serious and thereafter he took half day leave and went to his house and found Premo Devi lying dead. Thereafter, PW2 went to the house of brother of the deceased and informed him accordingly about the death of victim. PW2 further stated in his cross- examination that when he inquired from the accused as to what had happened, then accused apprised him that he do not know about the cause of death of deceased, PW2, though turned hostile, however has stated in his cross-examination that the accused was having good relations with the deceased. 6. PW3/Pawan Kumar, the son of the deceased, has stated that on 22.10.1999 on receiving a telephonic call that his mother was serious he reached his house at about 11.30 AM and when went inside the kitchen, he found the dead body of his mother. At that time, his father was sitting outside. When he enquired from his father about the cause of death of his mother, he told him that when he had gone to the fields, all this had happened in his absence. 5 7. PW4/Bido Ram, the brother of deceased, has stated that Babu Ram, the elder brother of the accused, his wife and younger brother Gahlo Ram informed him that the accused had killed Premo. PW4 accordingly went to the police station alongwith his brother Amar Singh and lodged report Ext.PD. The police had taken into possession the clothes of the deceased i.e. one salwar, one kameez and one shawl vide memo Ext.PE. PW4 in his cross-examination has stated that when the police reached the house of accused, none of the villagers was present there and only inmates of the house were present there. 8. PW5/Amar Singh, the nephew of the accused, has stated that the accused was his maternal uncle. PW5 had witnessed to the articles recovered from the spot. PW6/Smt. Nimmo Devi has observed the victim lying dead in the kitchen on the fateful day, thereafter, she alongwith her husband Babu Ram went to the house of Bido Ram brother of the deceased and apprised him about the incident. PW6 has stated in her cross-examination that she has not seen any person running away from the house of the accused. PW6 further stated in her cross-examination that the accused was having good relations with his wife. 6 9. PW7/Kishori Lal, Patwari and PW8 Daulat Ram, Surveyor are formal witnesses. PW9 Dr. Manju Mittal who conducted the post mortem of the deceased has noted the following injuries: 1. Bruise about 3” x 3” right upper arm, left ear Pinna was torned. Swelling of left side of face contused lacerated wound about 3” x 1 ½” left perital bone. Bleeding from wound was there. 2. Fracture of left right parietal bone. PW9 has opined that the injuries found on the person of deceased were sufficient to cause death in the ordinary course of events. 10. PW10/Ashok Kumar, son of Babu Ram has stated that on the fateful day, he went to the house of his uncle/accused. The victim was lying dead on the floor of kitchen and the accused was not present there. PW10 further stated in his cross-examination that firstly he informed his father on telephone, but when he could not contact him on telephone, he went to village Goli and informed him about the death of his aunt. PW11 ASI Mukesh Kumar, PW12 HC Rajesh Kumar are the police officials as such formal witnesses. PW14 Pano Devi has stated that she did not know the cause of death of the victim. PW15 C. Karam Singh and PW16 7 Inspector Sadhu Ram have supported the prosecution case. 11. We notice that none of the prosecution witnesses has seen the accused inflicting injuries on the person of victim/deceased. PW1/Sadho Ram, PW2/ Babu Ram, PW3/Pawan Kumar, and PW4/Bido Ram have not supported the prosecution case, whereas, PWs 1 and 2 have turned hostile and all the prosecution witnesses have consistently stated that the accused and the victim were having good relations. PW1, PW2 and PW10 did not find the accused present at the spot when they had seen the victim lying dead in the kitchen. The prosecution by the aid of circumstantial evidence also could not correlate the act of assault with the accused. Though, PW1 initially while making the complaint Ext.PA on 23.10.1999 has stated that on 22.10.1999 at about 9 AM, he heard the cries of victim/deceased and on going to the house of accused, he noticed the victim lying in the kitchen and blood was oozing from her head and at that time accused Khialo Ram while standing near the victim was holding a wooden plank and at that time no one was present and when he asked the accused, he replied that he had hit a blow on the head of his wife and she had died and he had committed this 8 act. In the meantime, mother of PW1, sisters-in-law Kali and Nimmo had come. On seeing the victim they were also perplexed and thereafter he asked his brother Babu Ram to go to the parents of the victim to inform them. Neither the witnesses have reiterated these facts in the testimony before the Court, nor the prosecution witnesses supported the prosecution case. Therefore, in the absence of complete chain having been made regarding assault, injury as well as in absence of ocular evidence, it cannot be said that prosecution has proved its case beyond reasonable doubt. Therefore, we do not find any scope of giving indulgence in the findings so arrived at by the learned Sessions Judge. The learned Sessions Judge has rightly arrived at the conclusion that the prosecution has failed to prove its case beyond reasonable doubts. The appeal is therefore dismissed. Bail bonds furnished by the respondent are discharged. (R.B. Misra) Judge August 2nd,2011 (Dev Darshan Sud), ms Judge 9