IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No. 556 of 2002. Date of Decision: 12.8.2011. _______________________________________________ State of H.P. ….Appellant. Versus. Sanjay Kumar and another. ….Respondents. Coram: Hon’ble Mr. Justice R.B.Misra, Judge. Hon’ble Mr. Justice Dev Darshan Sud, Judge. Whether approved for reporting1? For the appellant :Mr.R.K.Sharma, Senior Additional Advocate General. For the respondents. : Mr. Virender Singh Rathore, Advocate. Dev Darshan Sud, J.(Oral). The prosecution challenges the judgment passed by the learned Additional Sessions Judge-I, Kangra at Dharmshala acquitting both the respondents for offences under Sections 302, 201, 376 read with Section 34 I.P.C. Only respondent-Sanjay Kumar is charged for offences under Section 376 I.P.C. for the rape and murder of Sunita Devi wife of Pritam Chand. 2. The prosecution case in brief is that on 30th January, 1997 Sunita Devi wife of Pritam Singh (PW17), resident of Veejapur, Tehsil Jaisinghpur had gone to the Jungle for cutting grass but did not return home. Her husband got worried and he along with other Whether reporters of the Local papers are allowed to see the judgment?. 2 villagers started searching for her but could not find her. The search was resumed on the next day and on 31.1.1997, they found the body of Sunita Devi in the bushes in Halrana Jungle. Preliminary examination revealed that she had head injuries. A darat (sickle) was lying by the side of her body with blood stains. The police was telephonically informed which message was entered in the daily diary report and the police immediately rushed to the spot and reached at 9 A.M. and started investigation. Stone smeared with blood was found near the dead body. ‘Darat’ and ‘daat’ (used in muzzle loading gun) which was found at a distance of about 8 feet from the body was also taken into possession. Inquest report was prepared. The body was sent for post mortem examination, the blood stained clothes and vaginal swab etc. were sent to the Chemical Examiner. 3. According to the prosecution, respondent Damodar Dass confessed to Santosh Kumar (PW2) and Safi Ram that he had assaulted Sunita Devi with a ‘darat’ and had murdered her; that he and Safi Ram should save him from the police. The accused were arrested on 5.2.1997. 4. Accused Sanjay Kumar is also stated to have confessed to Varinder (PW9) that he had illicit relations with the deceased. He met Satish Kumar ((PW4) at village Halrana where he has supposed to have informed him about this fact. License of the gun of Sanjay Kumar was taken into possession. 5. Nineteen witnesses were examined by the prosecution in support of its case. The case alleged is that accused Sanjay Kumar had illicit relations with the deceased and had four issues from her. The other accused Damodar was his uncle, who knew about their 3 relationship and did not want this to continue. Both accused persons had hatched a conspiracy to eliminate her and thus committed the murder of deceased Sunita Devi. 6. Learned Sessions Judge formulated two points for determination: (a) As to whether Sanjay Kumar had raped the deceased. (b) Whether both the accused had caused death of Sunita Devi. 7. On the first point, the learned Court considers the evidence of PW1 Dr. Rupali Awasthi, who conducted the post mortem examination of Sunita Devi and opined that she had died because of shock caused by head injuries which were ante-mortem in nature and were sufficient to cause death in the normal course. On the question of rape, she stated that the final opinion could be given only after the chemical examiners report. The duration between the injuries and death could not be ascertained. The probable death between the duration and post mortem was 24-36 hours. Ext.PW1/C is the post mortem report. On examining the chemical examiners report Ext.PW1/D, she stated that semen was found on the slide which was sent for examination indicating that the deceased had sexual intercourse prior to her death and the possibility of rape could not be ruled out. In cross-examination, she admitted that semen found in the vagina of the deceased could be that of her husband and the source of the semen could be determined by further testing/tests. We find from the record that no such test has been performed. 8. The prosecution then relies upon the evidence of PW9 Varinder Kumar to establish the illicit relations between the deceased 4 and accused Sanjay Kumar. He has been declared hostile and nothing material has been elicited from his cross-examination. The evidence of PW4 Satish was also pressed into service to establish the complicity of the accused Sanjay Kumar. He states that about 3-4 years back, at around 4/5 P.M. in the evening, he met Sanjay Kumar in the village. He asked him as to where he was going on which he told him that this witness should not disclose to anyone that he knew the husband of deceased Sunita Devi. In his cross-examination he states that he had been beaten up by the police to make this statement. Another piece of evidence relied upon by the prosecution to prove the illicit relationship between the deceased and accused Sanjay Kumar is Ext.P16. This letter is purported to have been written by the deceased to accused Sanjay Kumar expressing her endearments/love and also anguish at his wayward attitude and behaviour. We need not delve more on this as her husband PW17 Pritam Chand has denied that the letter was written in her hand. He categorically denies this writing as being that of the deceased. 9. Adverting to the complicity of the accused and the fact as to whether the murder has been committed by both of them, the extra judicial confession made by Damodar respondent/accused is relied upon. Considering the evidence of PW2, Santosh Kumar, he states that on 1.2.1997, confession was made to him by Damodar Dass respondent (who is a resident of his village) had told him that he had killed Sunita Devi by inflicting a blow on her head with a ‘darat’ and it was all his fault. The accused had further asked him to save him from the police and any adverse consequences. He is sought to be 5 corroborated by Ext.PA which is a statement made under Section 164 Cr.P.C. before Magistrate,Ist Class, Palampur. 10. On the question of Damodar Dass respondent making an extra judicial confession before PW2 Santosh Kumar, it has come in his evidence that on 1.2.1997 he had confessed before him near his house that he had assaulted Sunita Devi with ‘darat’ and that he should save the accused. He then says that after 4-5 days the police visited the spot again and also came to his house, it is then that he narrated this episode to the police. Adverting to the evidence of PW18 Dile Ram, he admits that Damodar Dass remained with him during investigation from 31.1.1997 till 5.2.1997. He admits in cross examination that he was associated with the investigation throughout and he then stated that he cannot give any reason as to why Damodar Dass and Sanjay Kumar were not arrested immediately and that they were arrested only on 5.2.1997. The possibility that the investigation is not fair cannot be ruled out as there is no explanation as to why, when the factum of the crime which was disclosed to PW2 Santosh Kumar, he did not immediately inform the police when he was associated with the investigation from the beginning throughout for four days. Adverting to Ext. PA which is a statement of Saffi Ram made under Section 164 Cr.P.C. recorded before the Judicial Magistrate, we find that this does not at all advance the case of the prosecution. This statement was recorded on 1.3.1997; he says that he is Up-pradhan of Vijapur Panchayat and Damodar Dass is also resident of his village. On 2nd February, 1997, respondent Damodar Dass confessed before him that he had hit the deceased on the head with a ‘darat’ in the jungle Halrana and killed her. In these circumstances, he should be saved 6 from the police. Why this statement Ext.PA was recorded after more than a month of the incident is not clear. The statement of Saffi Ram the other witness before whom the respondent Damodar Dass had confessed, was recorded in an absolute identical terms on 1.3.1997 but he has not been produced in evidence nor his statement has been proved on the record. We do not find that he advances the case of the prosecution any further. 11. On the other point urged that the daat (wad) used in muzzle gun was found near the body, the learned court holds that it does not relate/connect with the muzzle loading gun so recovered nor is it in evidence that the gun was even used. The blood stains etc. found on the stone/clothes had also not been corroborated as it was not possible to identify the blood group (Ext.PW1/D). 12. In these circumstances, we do not find that the judgment of the trial Court requires any interference, more especially when the mainstay of the case of the prosecution: (A) illicit relations of Sanjay Kumar accused with the deceased being the basic motive for murder and (b) the extra judicial confession on the record both points having not been proved. The appeal is accordingly dismissed. Bail bonds executed by the respondents are discharged. (R.B.Misra), Judge. (Dev Darshan Sud), Judge. August 12,2011(R) 7