IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No.: 42 of 1999. Decided on: 18.05.2010. ___________________________________________ State of Himachal Pradesh. … Appellant. Versus Sunil Kumar and others. … Accused/Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 No. For the petitioner : Mr. Vivek Thakur, Additional Advocate General with Mr. Rajesh Mandhotra, Deputy Advocate General. For the Respondents : Mr. Vinay Thakur, Advocate. Deepak Gupta, J (Oral). This appeal, by the State, is directed against the judgment dated 20.6.1998, delivered by the learned Sessions Judge, Mandi in Sessions Trial No.34 of 1996 whereby the accused have been acquitted of having committed offences punishable under Sections 302 and 342 read with Section 34 of Indian Penal Code. 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. - 2 - 2. The undisputed facts are that deceased Brahm Dass and accused Prem Chand were brothers. Premi Devi alias Kaushalya is the wife of accused Prem Chand. Accused Sunil Kumar and Anita Kumari are the children of accused Prem Chand. 3. According to the prosecution, on 16.6.1996 Kala Devi (PW-6) wife of deceased, Brahm Dass had gone to the house of her sister, Sumfli Devi (PW-7). She returned home at about 7 p.m. Her son, Rakesh Kumar (PW-8) informed her that his father Brahm Dass had been beaten by the four accused and condition of the father was serious. According to the prosecution version, one Sanjay Kumar (PW-9) had tried to intervene into the matter, but the accused had told him to go away. It is further the case of the prosecution that Bihari Lal, Nek Ram, Jai Singh and Amar Singh also knew fully about the incident. 4. Admittedly, PW-6 returned home on 16.6.1996 late in the evening and came to know about the fact that her husband had been beaten by all the aforesaid accused. No report was lodged with the police on the said date. Even the injured was not taken to hospital. Accordingly to the prosecution, Brahm Dass died on the night intervening 16th and 17th June, 1996 in the early hours of the morning. However, no report was lodged and Chowkidar of the village Hachhu Ram (not examined) went to the police station on - 3 - the night intervening 17th and 18th June, 1996 and lodged report at about mid-night that PW-6, Kala Devi had informed him that somebody had killed her husband. In this initial report, the names of the accused were not mentioned. Thereafter the police came to the spot. It was only after the receipt of the initial report that the statement of PW-6 Kala Devi was recorded in which for the first time the version, as set out hereinabove was given. 5. After completion of investigation, final report was filed under Section 173 Cr.P.C. before the Judicial Magistrate. Since the offences were exclusively triable by the Sessions Court, the case was committed to the Court of Sessions. Accused were charged with having committed the offences of wrongfully confining the deceased and thereafter murdering him. After trial, the accused have been acquitted. Hence, the present appeal. 6. At the outset, it may be stated that PW-9, Sanjay Kumar, Amar Singh PW-1 and PW-2 Bihari Lal turned hostile as they did not support the prosecution at all. According to them, they have not witnessed the accused beating Brahm Dass. Their version is that they only heard the cries of PW-6 Kala Devi in the morning and went to her house and then she informed them that somebody had beaten her husband. 7. So far as statement of PW-6 Kala Devi is concerned, admittedly, she was not an eye witness and her - 4 - statement is based solely on what PW-8 Rakesh Kumar told her. Therefore, the primary evidence is of PW-8 Ramesh Kumar. 8. Rakesh Kumar is a child witness. He was aged about 11 years when his statement was recorded in Court and about 10 years of age when the incident took place. The law with regard to the appreciation of the testimony of a child witness is that such testimony should be scrutinized with great care and caution. A child on account of his innocence would not tell a lie. However, when the child is tutored by his family members or the other persons who are close to him, he will repeat what has been tutored to him and may start believing that what is being told to him is the truth. 9. In the present case, Rakesh Kumar while appearing in the Court stated that the four accused were known to him since they lived across his house. Prem Chand, accused is his father’s elder brother. According to him, on 16.6.1996, a quarrel took place between his father and Prem Chand on account of a stair case being constructed by the accused. Thereafter, the four accused started abusing his father. The Court while recording the statement of this witness has noted that this witness is deposing in a parrot like manner. According to Rakesh Kumar thereafter his father was dragged into their house by all the four accused - 5 - and the door was closed from inside. When his father came out, he was in great agony and was not able to walk. Rakesh Kumar further stated that his father did not tell him who gave him beatings. In the evening he narrated the entire incident to his mother. In cross examination he stated that the incident started at about 2 p.m. and the entire incident took about three hours. He admitted that there was a loud quarrel and there are 10-12 houses close by. He, however, could not state whether the inhabitants of those houses heard the quarrel or not. He further stated that nobody else except Sanjay Kumar came there. According to him, when his father came out of the house of accused, Nek Ram, Behari Lal and Jai Singh were present. He also stated that his father did not speak till he died. This witness admitted that a police officer having two stars had told him and explained what he was to state in the Court and he also admitted that whatever he has stated in the Court, is at the instance of the police officer. This admission itself shows that the police people were tutoring this child. Therefore, his testimony becomes totally unreliable. In addition to the fact that the child appears to have been tutored, his statement is not supported by PW-9 Sanjay Kumar, PW-1 Amar Singh and PW-2, Bihari Lal. - 6 - 10. In view of the aforesaid evidence, the prosecution has miserably failed to prove that the deceased was either wrongfully confined or murdered by the accused. 11. For the foregoing reasons, we are of the considered view that the learned trial Court was justified in acquitting the accused. We find no reason to interfere with the well reasoned judgment of the learned trial Court. The appeal is accordingly dismissed. Bail bonds furnished by the accused are ordered to be discharged. (Deepak Gupta), Judge. (Rajiv Sharma), Judge. May 18, 2010. (sck).