IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 19 of 1993 Judgment reserved on 13.3.2008 Date of decision: 18.3.2008 State of H.P. …Appellant Versus Prem Sagar …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 For the appellant Mr. P.K. Sharma, Addl. Advocate General. For respondent : Mr. Avinash Jaryal, Advocate. Surjit Singh, Judge State has appealed against the judgment of the Sessions Court, whereby the respondent, who was sent up for trial for offences punishable under Sections 376, 302 and 201 of the Indian Penal Code, has been acquitted. 2. Prosecution story, as per trial Court’s record, may be summed up thus. In Galua Mohalla of Una township PW-22 Master Gurdev Singh has two houses, situated at a distance of about one hundred yards from each other. Gurdev Singh used to reside himself on the ground floor of one house abutting on the street. The upper storey of Whether reporters of the local papers may be allowed to see the judgment? …2… that house had been rented out to PW-2 Rajay Singh, Patwari, who lived there with his wife (PW-24) Shanti Devi and two small daughters. The eldest daughter was deceased Babli aged about five years. In the other house of Gurdev Singh, situated at a distance of about hundred yards and which house is surrounded by several other houses, a number of tenants lived, including respondent Prem Sagar. Respondent Prem Sagar’s tenement consisted of one room, measuring 12 feet X 7 feet and a small kitchen. The respondent used to live in the tenement with his wife and a small daughter, aged about one year. Deceased Babli used to go to the house of the respondent to play with his daughter. On 23.2.1991 respondent’s wife and daughter were away from Una town as his wife had gone to attend some marriage, a few days earlier. Deceased Babli went to school on 23.2.1991 and on return from school changed her clothes, took her meals and went out to play with other children at a nearby open space. Around 4.00 p.m. Babli’s mother Shanti Devi (PW-24) went to fetch milk. While leaving the house she saw Babli playing on a heap of sand near her tenement. When she returned 10-15 minutes later, she did not notice her aforesaid daughter Babli. She searched for her. She went to her landlady PW-9 Gurbax Kaur and told her that her daughter, who was playing near the house when she went to fetch the milk, was not traceable. Around 5.00 p.m. the respondent passed in front of the tenement of Rajay Singh (PW-2), Shanti Devi (PW-24) asked him if he had seen her daughter Babli. The respondent by the movement of his head gestured that he had not seen her. Around 6.00 in the evening Rajay Singh returned from his office. He was apprised by his wife PW-24 Shanti Devi about Babli having gone missing. Rajay Singh contacted his colleagues and also his neighbours, including Partap Singh (PW-23). Announcements were made on loudspeaker giving the description of the girl that she was missing and anybody finding her should hand her over to …3… PW-23 Partap Singh at his shop near new bus stand. However, the child could not be found. Next day, i.e. on 24.2.1991, Rajay Singh (PW-2) lodged a report (copy Ext. PC) with the police. Police started search for the girl. On 25.2.1991 a young girl, named Deepo (PW-7) went to Santokh Singh, Lambardar (PW-5) and informed him that a gunny bag, with something placed therein, was lying in a nearby Khad. Santokh Singh went to the spot in the company of said Deepo and another man and saw something like the back of a child in the gunny bag. He went to the police station and reported what he had seen. Copy of the report is Ext. PG. Police went to the Khad and found the dead body of a small girl in the gunny bag. It was taken out. The dead body was identified to be that of deceased Babli by her father PW-2 Rajay Singh and two of his colleagues, both named Ram Lal. Inquest was conducted. The dead body was sent for postmortem examination. Postmortem examination was conducted by PW-13 Dr. S.P. Kanwar and his colleague Dr. Mrs. S. Sharma. The doctors observed as follows:- “The body of a female child 40” in height wearing green coloured Jamper and Salwar. Full sleev pink and white sweater and white colour vest. The Salwar is stained with blood and feecal matter, especially in the perineal region. No other stain detected. Post mortem staining present especially on left side of body and back. Rigor mortis absent from bigger as well as smaller joints. Greenish dis-colouration present all over interior abdominal wall. Bleeding from nostrils was present, face cyanosed. Inner aspects of thighs stained with blood. No external injury on thighs. Vulva, perineum and thighs stained with blood. Labia majora swollen. Labia minora lacerated, perineum lacerated just 1 cm short of anus posteriorly. Hymen completely lacerated and multiple tears were present all over the vaginal wall which are muscle deep. Vagina filled with clotted blood (vaginal swab was taken for …4… chemical examination). Ligature mark on the neck, tapering towards back measuring two inches in front and one inch on the back. The margins were echimosed. The base is hard and parchment type. Blood seen in the subcutaneous tissues under the ligature mark and also in the adjoining muscles. Scalp, skull and vertebrae Membrances-Brain spinal cord. No external mark of injury. On opening the skull membrances were congested. THORAX 1. Walls, ribs and cartilages : No external injury. 2. Plearae : congested. 3. Larynx and trachea : congested. Echymosis was seen in the subcutaneous tissues under the ligature mark and also in the adjoining muscles. 4. Right and left lungs : Both congested. 5. Pericardium : Congested. Heard, large vessels : Both chambers of heart Were empty. ABDOMEN Walls Greenish discolouration All over the anterior abdominal wall. Peritoneum Congested. Mouth, larynx and Oesophagus : Stomach was empty. There was no ulceration in petechial haem- orrhages seen. Small intestines and their These all were contents. Large intestines congested. and their contents, liver, spleen kidney; Bladder: Empty Organs of generation external Vulva, perineum and and internal : thighs stained with blood …5… labia majora swollen, Labia minora lacerated, perineum lacerated upto 1 cm short of anus posteriorly, hymen completely lacerated and multiple tears present all over the vaginal wall which are muscle deep. Vagina filled with clotted blood. (Vaginal swab was taken).” The doctors opined that the cause of death was asphyxia and sexual offence. Injuries were opined to be ante mortem. The death was opined to have taken place instantaneously with the infliction of the injuries and time gap between the death and the post mortem was opined to be 36 to 48 hours. Post mortem examination was conducted at 4.00 p.m. on 25.2.1991. 3. During the course of investigation, police came to know that the respondent, who had been working as a cook at the hotel of PW-10 Tirath Ram near the new bus stand, had been missing for the last two-three days. On coming to know that the respondent was resident of village Mehandpur Bhattia, Police Station Nangal, District Ropar, a police party was deputed to nab him. On way to the village of the respondent, the police party spotted him near village Palakwa in Una District. He was accompanied by his wife, mother and brother-in-law and they all were going to a temple near Haroli. The respondent was identified by one Jasbir Singh, who was accompanying the police party. Police party took the respondent to the police station. He was produced before SHO Sita Ram, SI (PW- 26). Sita Ram noticed some stains of blood on the shirt, which the …6… respondent was wearing. Therefore, he required the respondent to remove his shirt and also the underwear. The same were taken into possession in the presence of witnesses Gurcharan Singh (PW-6) and one Pritam Singh and made into separate parcels which were duly sealed. The seal after use was given to Pritam Singh. On 28.2.1991 the respondent was interrogated in the presence of PW-5 Santokh Singh and one Mangat Ram Saini. He made a statement that he had kept one worn out ‘Khandolu’ (mattress) under a pillow on his cot and one broom under the cot and that both of them were stained with blood. On the basis of that statement the blood stained ‘Khandolu’ and the broom were recovered and taken into possession on the next following day. On 5.3.1991 one trunk (tin box) was recovered from the house of the respondent, which too had stains of blood. On 1.3.1991 the respondent got recovered a wet blanket from underneath some gunny bags from a store-room of the hotel of his employer Tirath Ram (PW-10). That also appeared to be blood- stained. The aforesaid shirt, underwear, ‘Khandolu’, broom, blanket and trunk were sent to the Chemical Examiner. The Chemical Examiner, vide reports Exts. PGG and PHH, opined that the shirt of the respondent bore stains of human blood of group ‘A’. Blood stains of human on ‘Khandolu’ were also found. On the broom stains of human blood of group ‘A’ were noticed. On the underwear of the respondent stains of semen were noticed. On the trunk stains of human blood were found, but the group could not be determined. Clothes of the deceased, which had been removed from the dead body at the time of the post mortem examination, were also sent to …7… the Chemical Examiner, who gave opinion that the clothes were stained with human blood of group ‘A’ and that on the ‘Salwar’ of the deceased human semen was also there. 4. Wife of the respondent PW-1 Suneeta told the police, during the course of investigation, that the respondent had confessed to her having committed the murder of the child after raping her, after she spotted a gunny bag, with something bleeding packed in it, in her house on 24.2.1991, after return from the village. She made an application to the concerned Magistrate for recording her statement under Section 164, Cr.P.C. The Magistrate recorded her statement and forwarded the same to the Sessions Court. During the course of trial, Suneeta, wife of the respondent, resiled from her statement under Section 164, Cr.P.C. 5. Tirath Ram (PW-10), at whose hotel the respondent was employed as a cook at the relevant time, stated that on 23.2.1991, i.e. the day of the occurrence, the respondent was allowed rest from 3.00 p.m. to 5.00 p.m., as usual, and that instead of reporting for duty at 5.00 p.m., he came at 6.00 p.m. and from his behaviour it appeared that he had consumed some intoxicant. He also stated that the respondent was looking upset and on being asked by him, told that under the influence of Saturn he happened to commit a mistake. 6. PW-11 Kushal Singh, a sales-man at a liquor vend, located near the hotel / restaurant of PW-10 Tirath Singh, stated that on 23.2.1991 the respondent came to his shop at 5.00 p.m. and …8… purchased a pint of liquor and that after some-time he again visited the liquor vend and purchased some more liquor. 7. Trial Court has disbelieved the prosecution version and acquitted the respondent. Suneeta (PW-1), wife of the respondent, did not stick to her statement, which she made under Section 164 of the Code of Criminal Procedure before the Magistrate during the investigation of the case. Besides her statement before the Magistrate, to the extent it related to the confession of the crime by the respondent to her, was held to be inadmissible in view of the bar contained in Section 122 of the Evidence Act. In her statement, under Section 164 of the Code of Criminal Procedure, PW-1 Suneeta besides testifying about the alleged confession made to her by the respondent, stated a few more facts. She stated that when she returned on 24.2.1991, she saw something unusual in a gunny bag and blood drops falling there-from when it was lifted, upon which she felt like vomiting. She did not testify even these facts while in the witness box. Her statement under Section 164 of the Code of Criminal Procedure regarding the aforesaid facts could have been used only as corroborative evidence and since she did not testify these facts, during trial while in the witness box as PW-1, the trial Court rightly did not place any reliance upon the earlier statement under Section 164 of the Code of Criminal Procedure Ext. PA. 8. Trial Court disbelieved the evidence regarding seizure of the shirt Ext. P-16 and the underwear Ext. P-17 of the respondent soon after his arrest and observed that the chances of blood stains having been planted on the shirt, could not be ruled out. Trial Court …9… also did not believe the evidence of the prosecution regarding the alleged disclosure statement made by the respondent leading to the recovery of Khandolu Ext. P-12, Judi (broom) Ext. P-13, blanket Ext. P-14 and trunk Ext. P-11. Evidence of PW-10 Tirath Ram, the employer of the respondent, was observed to be irrelevant as it did not connect the respondent with the commission of the crime in any way. The testimony of PW-11 Kushal Singh, salesman at the liquor vend, was also held to be irrelevant. 9. We have perused the record and heard the learned Additional Advocate General. 10. Suneeta (PW-1), wife of the respondent, turned hostile during the trial. She did not depose any fact indicative of the involvement of the respondent in the commission of crime. She was confronted with her statement under Section 164 of the Code of Criminal procedure Ext. PA. She stated that the statement had been tutored to her by the police and she was threatened and coerced by the police to make the same before the Magistrate. We sent for the police diaries and found that what-ever she stated in her statement Ext. PA, under Section 164 of the Code of Criminal Procedure before the Magistrate on 2.3.1991, was already known to the police on 27.2.1991 and, therefore, the possibility that PW-1 Suneeta was tutored the contents of statement Ext. PA and compelled and threatened to make the same before the Magistrate, as testified by her while appearing as PW-1, cannot be ruled out. 11. The incident is alleged to have taken place on 23.2.1991. The dead body packed in a gunny bag, according to the …10… prosecution version, was dumped in the Nulla on the night intervening 24th / 25th February, 1991. The respondent was arrested on 27.2.1991 near village Palakwah, when he was going to the temple of Baba Balaknath in the company of his wife (PW-1) Suneeta and a few other relatives. He was produced before the S.H.O., PW-26 Sita Ram on the same day. PW-26 Sita Ram has stated that the respondent was produced before him at 7.00 p.m. and he started interrogating him immediately and after being satisfied about his involvement in the commission of the crime on the basis of the statement made by the respondent during such interrogation, he arrested him at 9.00 p.m. He stated that the respondent was wearing a shirt, which had blood stains on the left- sleeve, and he seized the same vide memo. Ext. PN. He further stated that the respondent was also made to remove his underwear and to hand it over to the police and that the same was taken into possession vide memo. Ext. PO. He stated that PW-6 Gurcharan Singh and one Pritam Singh, whom the prosecution did not examine, were present at the time of the seizure of the shirt and the underwear of the respondent and that they signed the seizure memo Exts. PN and PO. PW-6 made a contradictory statement. He stated that it was at 4.00 p.m. on 27.2.1991 when the shirt Ext. P-16 and the underwear Ext. P-17 of the respondent were taken into possession by the police. The contradiction renders the entire story of the seizure of shirt Ext. P-16 and the underwear Ext. P-17 highly doubtful. Prosecution did not examine any other witness, who could have testified that the shirt Ext. P-16 and underwear Ext. P-17 were …11… those of the respondent. PW-6 Gurcharan Singh stated that the stains of the blood on the shirt were fresh. Now, if the respondent were the culprit and he was wearing the shirt Ext. P-16 on 23.2.1991 at the time of the commission of the crime or on the night intervening 24th / 25th February, 1991, when the dead body was dumped in the Nulla and the stains of blood appeared on the shirt while committing the crime or dumping the dead body, as is sought to be established by the prosecution, on account of the presence of stains of human blood of group ‘A’ on the sleeve of the shirt Ext. P-16, the stains could not have been fresh on 27.2.1991 as testified by Gurcharan Singh (PW-6). The testimony suggests that the blood stains might have been planted on the shirt. 12. Evidence regarding recovery of ‘Khandolu’ and ‘Jury’ is also not above board. We may notice that the Chemical Examiner, to whom the ‘Khandolu’ and the ‘Jury’ were sent for seeking his opinion about the blood like stains thereon, reported vide report Ext. PGG that stains of human blood were found on ‘Khandolu’, but the group could not be determined. On ‘Jury’ (broom) he found stains of human blood of group ‘A’. Stains of blood found on the clothes of the deceased were also of group ‘A’. That means the blood stains found on the ‘Jury’ (broom) matched with the blood group of the deceased. The respondent made a disclosure statement leading to the recovery of ‘Khandolu’ Ext. P-12 and ‘Jury’ Ext. P-13 on 28.2.1991 at 4.00 p.m., per deposition of PW-25 Roda Ram. Ext. PH is the record of the statement allegedly made by the respondent. Recovery of the aforesaid two items, …12… pursuant to the alleged statement of the respondent, was made on the next following day, i.e. 1.3.1991, at 12.00 noon in the presence of PW-5 Santokh Singh and one Mangat Ram, per deposition of PW- 25 Roda Ram, S.I. and recovery memo. was also prepared which is Ext. PF. Mangat Ram was not examined by the prosecution. PW-5 Santokh Singh made a contradictory statement about the recovery of ‘Khandolu’ and ‘Jury’ and the alleged disclosure statement by the respondent. He stated that the respondent made the statement that he had kept one ‘Khandolu’ and one ‘Jury’ in his house in Galua Mohalla and one blanket in a bag in the kitchen of Cold Corner Hotel at Una. In the cross-examination he stated that on 28.2.1991 at 3.30 p.m., when he was called to the police station along-with Mangat Ram, the respondent made the statement that he had killed the girl and he did not say anything else. He further stated that the recovery of ‘Khandolu’ and ‘Jury’ was effected by the police on 28.2.1991 itself at 4.00 or 5.00 p.m. The statement of this witness contradicts the testimony of PW-25 Roda Ram, S.I. that ‘Khandolu’ and ‘Jury’ were recovered on 1.3.1991 at 12.00 noon. The testimony of PW-25 Roda Ram about the particular places in the room of the respondent from where the recovery was effected, is contradicted by the contents of the seizure memo. Ext. PL. According to the testimony of this witness, ‘Khandolu’ was recovered from underneath the pillow and broom from underneath the cot, but according to Ext. PL, both these items were recovered from underneath the pillow lying on the cot. …13… 13. Evidence with regard to the alleged recovery of blood stained blanket at the instance of the respondent from the kitchen of the hotel of PW-10 Tirath Ram, where the respondent was employed those days, is also doubtful. According to PW-25 Roda Ram, the respondent made disclosure statement about the blanket at the same time when he made disclosure statement about ‘Khandolu’ and ‘Jury’, i.e. on 28.2.1991 at 4.00 p.m., and the recovery, according to him, was effected on 1.3.1991 against memo. Ext. PM. PW-5 Santokh Singh, one of the attesting witnesses of Ext. PM, however, says that the recovery of blanket was also effected on 28.2.1991 and the time given by him is 6.00 p.m. Tirath Ram (PW- 10) stated that it was 27th or 28th February at 3.oo or 4.00 p.m. when the police came to his hotel and took away blanket Ext. P-14. The testimony of PW-5 Santokh Singh and PW-10 Tirath Ram, which are contradictory to the testimony of PW-25 Roda Ram about the date and time of the recovery of the blanket, make the story of this recovery also quite doubtful. In any case, no blood was found on the blanket, per report Ext. PGG of the Chemical Examiner, and, therefore, the recovery of this item does not connect the respondent with the crime. 14. It is also the case of the prosecution that on inspection of the room of the respondent on 5.3.1991 by PW-26 Inspector Sita Ram, SHO, a trunk was found, which bore stains of human blood and the same was taken into possession vide memo. Ext. PK, in the presence of PW-5 Santokh Singh and PW-8 Kartar Singh. PW-5 Santokh Singh and PW-8 Kartar Singh testified that on 5.3.1991 the …14… room of the respondent was visited by the police and a trunk, having stains of blood, was found in the room which the police took into possession. Roda Ram (PW-25) has also made a similar statement. However, both PW-5 Santokh Singh and PW-8 Kartar Singh stated in the cross-examination that the stains of blood noticed on the trunk and its ‘Kunda’ (hasp) were fresh. How could the stains on the trunk as also its hasp have been fresh on 5.3.1991, when the crime is alleged to have been committed on 23.2.1991 and the dead body had been removed from the room on the night intervening 24th / 25th February, 1991. According to the report of the Chemical Examiner Ext. PHH, even though stains of blood were found on the trunk, it could not be determined whether it was human blood. 15. The testimony of PW-10 Tirath Ram to the effect that the respondent was looking unnerved and under the influence of some intoxicant on 23.2.1991 at 6.00 p.m., when he came to the hotel after rest and had not been doing his work on ‘Tandoor’ satisfactorily and that on enquiry he told that under the influence of Saturn, he happened to commit a bad act, does not, by itself, prove the charge against the respondent. 16. Testimony of PW-11 Kushal Singh that the respondent had consumed liquor at his vend on the evening of 23.2.1991, not only does not connect the respondent with the crime but is also doubtful. To the police, vide statement mark PQ, with which he was duly confronted, he stated that the respondent purchased liquor from him in nips one after the other and consumed it at his vend, but while in the witness box he stated that the respondent purchased a …15… pint and went away and after some-time he again came to buy more liquor. 17. In view of the above discussion, we find no reason to interfere with the judgment of acquittal passed by the trial Court. Consequently the appeal is dismissed. ( Surjit Singh ) Judge March 18, 2008 (BC) ( Surinder Singh ) Judge …16…