IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 298 of 1997 Date of Decision : September 17, 2010 State of Himachal Pradesh Appellant Versus Pritam Singh alias Preeto Respondent Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the appellant : Mr. Rajesh Mandhotra, Deputy Advocate General for the appellant/State. For the respondent : Mr. Naresh K. Thakur, Advocate, for the respondent. Deepak Gupta, J. (Oral) This appeal by the State is directed against the judgment dated 26.3.1997 delivered by the learned Sessions Judge, Chamba Division, Chamba, H.P. in Sessions Case No. 38 of 1995 whereby he acquitted the accused of having committed offences punishable under Sections 302 and 201 of the Indian Penal Code. 2. The prosecution story in brief is that late Sh. Mansa Ram (deceased) left his house in the morning of 21.5.1995 in the company of the accused. He was to purchase an Ox at village Sangadi and for this purpose he had taken Rs. 1500/-. In the evening he did not return home. On 23.5.1995 his brother Moti Whether reports of Local Papers may be allowed to see the judgment? Yes. 2 Ram (PW-2) lodged a complaint (Ext. PD) at Police Station, Tissa to the effect that the deceased after raising loan of Rs. 1000/- and taking Rs. 500/- of his own had gone to village Sangadi to purchase Ox alongwith the accused. It was further mentioned that at about 5.45 p.m. his aunt Smt. Kunnu (PW-6) had told him that dead body of Mansa Ram is lying below village Sarangadi. He then went to the spot and identified the dead body of his brother, made arrangements to protect the dead body and then came to lodge the report. In the complaint it is also mentioned that when he was coming to lodge the report and had reached near village Shikari and was near the shop of Sh. Shiv Dayal, Pradhan then one Kawad s/o Sh. Hasadulla told him that Lal Dei (PW-9) had asked Kashmiru (PW- 8) whether Mansa Ram had reached home or not. Complainant stated that he suspected that the accused had murdered his brother since they both had been last seen together. Thereafter police went to the spot. Body was taken into possession. Post mortem of the body was got conducted and the viscera was sent for chemical examination. Statements of the other witnesses were recorded. After completion of investigation challan was filed against the accused. Since the case was exclusively triable by the Court of Sessions it was committed for trial to the learned Sessions Judge, Chamba. After trial the accused has been acquitted. Hence the present appeal. 3. The star witness of the prosecution is Sh. Hoshiara (PW-5) who is alleged to be the eye-witness of the occurrence. According to 3 this witness he had gone to cut fuel wood in the forest. He felt like easing himself and went to defecate behind the bushes. He left the fuel wood and the axe which he used to cut the fuel wood behind. He saw the accused coming to the place where the fuel wood and the axe were left. The accused lifted the axe and took it with him and told witness Hoshiara in a loud authoritative tone that he was taking the axe with him. According to Hoshiara the accused appeared to be drunk. After easing himself he went to the place where the fire wood was kept. His axe was not there. Therefore, he followed the accused and asked him to return the axe. Instead of returning the axe accused started berating Hoshiara and threatened to beat him up with axe. Hoshiara ran for safety. The accused followed him for some steps and then proceeded towards the deceased Mansa Ram. The deceased was standing at a considerable distance. According to Hoshiara when the accused reached the place where the deceased was standing, accused gave a blow of the axe to the deceased, as a result of which the deceased fell down. Thereafter the accused lifted the deceased and carried him on his back for some time and then witness Hoshiara ran back to his house since he was scared. This witness also states that since he was standing at a considerable distance from the place of occurrence and there were some oak trees in between he could not see on which part of the body of the deceased the accused had given the blow. 4 4. The learned trial Court has come to the conclusion that the statement of this witness does not inspire confidence and cannot be relied upon. The reason for this is that this witness himself was also first suspected of having committed the murder of Mansa Ram. In fact he in cross examination admitted that he was arrested by the police in this case and remained in police custody for two nights. Both he and accused were arrested by the police on the same date. More importantly this witness was arrested on the fourth day after the incident i.e. on the 24th. If he had witnessed the incident he should have narrated what he had seen to his family members, co- villagers or should have reported the matter to the Pradhan of the village or other persons in authority if not to the police. He in fact states that he did not reveal to anyone what he had seen on the evening of 21st May. He had not even talked to his family members about it. His explanation is that he was scared and since he has no other family member except his wife and two small children he felt very scared and therefore did not tell anybody about the incident. This conduct of the witness is highly unnatural. The deceased and the accused as well as this witness belong to the same area. It is a rural area. There is no evidence worth the name on record to show that the accused is a person having such control over the area that nobody will speak against him. We see no reason why this witness, if he had witnessed the incident, should not have reported the matter to the village Chowkidar or the Pradhan or other co-villagers even if he could not come to the police station. His conduct of 5 keeping silent for three days makes his statement highly unreliable. In fact, for all we know, it may be he who had committed the murder since it was his axe which was used in the murder. In fact the axe was recovered from his house though allegedly at the instance of the accused. Be that as it may the statement of this witness cannot be relied upon to convict the accused. 5. There are other contradictions also in the case. According to this witness when he saw the accused giving blows to the deceased there were two other boys accompanying the accused. There is no explanation as to who were these boys. In fact Ms. Naro (PW-7) has stated that she saw accused Pritam alongwith one other person and two other boys passing village path near her house. The accused and his companion were staggering and falling against each other. Accused gave a push to his companion who fell down. When she (Naro) asked him why the accused was quarreling with that person, accused retorted that who was she to question. Thereafter the accused, his companion and the two boys went away. These two boys have neither been identified by Naro nor by PW-5. 6. Smt. Kunnu (PW-6) is the aunt of deceased Mansa Ram and Moti Ram (PW-2). It was she who informed Moti Ram about the incident. In fact her version is that when she was near her “adhwar” (small hut situated in the cultivable land meant for storing fodder and agricultural produce) she heard some small children taking amongst themselves that Mansa Ram had been killed in village Sarangadi. On hearing their version she kept her cattle inside the 6 “adhwar” and came home. Then she shouted for Moti Ram (PW-2) and he came from his village to her house. Then she narrated to him the conversation between the children. Her conduct is also highly improbable. If she had heard the children talking she would have asked them from where they had heard the news of the death of Mansa Ram. She does not say that she did this. In fact according to her she was not knowing the aforesaid children and was not knowing the village to which they belonged. In a remote area where this incident took place it cannot be believed that children would know the name of the deceased but this witness would not know the name of the children. Assuming that she did not knew their names she would have immediately made an attempt to find out the identity of the children or their parents since it was her nephew who had allegedly been killed. 7. For the aforesaid reasons the learned trial Court was fully justified in acquitting the accused. We find no reason to interfere in the judgment of acquittal. The appeal is accordingly dismissed. Bail bonds furnished by the accused are ordered to be discharged. (Deepak Gupta), Judge. (Sanjay Karol), Judge. September 17, 2010 (PK)