IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 288 of 1997 Date of decision: 19.06.2010 ____________________________________________________________ The State of H.P. .....Appellant. Versus Desh Raj and others .....Respondents. Coram The Hon'ble Mr. Justice R.B. Misra,J. The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? ____________________________________________________________ For the appellant: Mr. Anil Jaswal, Deputy Advocate General. For the respondents: Mr. Vinod Thakur, Advocate. (Except respondent No. 4) ____________________________________________________________ R.B. Misra, J (Oral). The present criminal appeal has come up for consideration after leave to appeal under Section 378(3) of the Code of Criminal Procedure has been granted in reference to the impugned judgment and order dated 18.09.1996, passed by the learned Additional Sessions Judge, Mandi, District Mandi, in Sessions Trial No. 32 of 1995, acquitting the alleged accused under Sections 302 and 201 read with Section 34 of the Indian Penal Code. 2. During course of hearing it has been brought to the notice of this Court that the alleged accused, namely Netar Ram 1 Whether reporters of Local Papers may be allowed to see the judgment? ...2... (respondent No. 4) has died. 3. In order to adjudicate the criminal appeal, it is necessary to give the factual background of the case. According to the prosecution, on 27.4.1995, Baman Ram (PW-7), lodged a report to the police that Darompti, his grand daughter, who was brought up by him and was married to Desh Raj son of Gopal Singh, resident of village Chhater and there is no issue from the wedlock of Darompti and Desh Raj. As per version of Darompti, her mother-in-law, Indra Devi was annoyed, as she could not deliver a child. About 15-16 days prior to lodging of the report, Darompti came to the house of Baman Ram and remained there for four days and told that Indra Devi was annoyed with her and wanted to get Desh Raj married again. After four days Darompti went to her in-laws' house and on 26.4.1995, one boy came from the village of in-laws of Darompti and told Baman Ram that Darompti died on 25.4.1995 and has also been cremated on the same day. Accordingly, FIR was lodged and Desh Raj was the suspect for causing death of Darompti and was charged for offences under Sections 302 and 201 of the Indian Penal Code. The remaining accused were charged for the offences under Section 201 of the Indian Penal Code. Accordingly, the case was committed to the Sessions Court. 4. In order to prove its case, prosecution examined as many as sixteen witnesses, whereas, accused-respondents have denied the prosecution case. 5. PW-1 Shri Jhamfi Ram, PW-2 Smt. Padma Devi, PW-3 ...3... Constable Ram Chand, PW-4 Shri Nidhi Singh, PW-5 Shri Gian Singh, PW-6 Shri Surinder Singh, brother of Darompti (deceased), PW-7 Shri Baman Ram, grand father of Darompti alias Nisha (deceased), PW-8 Smt. Ghambo Devi, PW-9 Shri Lal Singh, PW-10 Shri Pawan Kumar, PW-11 Shri Dalip Singh were examined by the prosecution and PW-12 Smt. Maya, PW-13 Smt. Ruma Devi, PW-14 Shri R.K. Sharma, Sub Judge-cum-JMIC(I) Mandi, PW-15 Shri Kamal Nain, ASI, PW-16 Shri Gulzar Mohammad were also examined, whereas PW-1, PW-8, PW-9 and PW-13 were declared hostile. 6. We have examined the prosecution witnesses and material on record. We notice that Darompti alias Nisha had died on 25.04.1995, at village Chhater, that is in her in-laws' village. As per prosecution case, she was murdered by accused Desh Raj on 25.04.1995, whereas the case of the accused-respondents is that she died due to stomach problem. According to prosecution, deceased Darompti alias Nisha was murdered, firstly as she was issueless even after her marriage, solemnized about five years back and her 'devar', who was married latter was blessed with a son and secondly, Drompti also had brought less dowry. We also notice that there is no direct evidence regarding murder of Darompti alias Nisha by accused Desh Raj. No prosecution witness has, in fact, seen the incident of murdering Darompti alias Nisha in the cattle shed. On analyzing the prosecution witnesses, we also notice that in view of the testimony of PW-8 Smt. Ghambo Devi, PW-9 Shri Lal Singh and PW-11 Shri Dalip Singh, there were ...4... blueish mark on the neck of the deceased. However, none of the prosecution witnesses have ultimately supported the prosecution case, as above witnesses have been declared hostile and they ultimately indicated that they did not watch any blueish mark on the dead body of Darompti alias Nisha. None of the witnesses have also deposed about any blueish mark or any other mark on the neck of the deceased ever existing even before cremation. From this point of view, it cannot be indicated that accused Desh Raj might have inflicted some injuries and created blueish mark on the neck and the body of the deceased. 7. Prosecution has endeavoured to say that 'danda' and 'rope' were recovered at the instance of accused Desh Raj. As per the statement of Investigating Officer, on 4th May, 1995, accused Desh Raj gave disclosure statement, whereas the recovery of danda and rope was effected on 6th May, 1995, vide recovery memo, Ex. PH, and that too from the bushes in a nala, which is an open place. As per prosecution, danda and rope were identified by Ruma Devi, which were said to be carried by Desh Raj, but Ruma Devi, PW-13, had ultimately declined to see rope and danda being carried by Desh Raj accused. The danda and rope were said to have been recovered after two days of the recording of the disclosure statement of accused Desh Raj, Ex. PG, and no reason has been given by the Investigating Officer as to why the same were not recovered on 4th May, 1995, itself despite disclosure statement having been made by accused Desh Raj, on the same day and making recovery on 6th May, 1995. ...5... 8. On analysis of prosecution witnesses, we find that prosecution has not been able to co-relate that the same danda and rope were used by accused Desh Raj for inflicting injury or for the purpose of murdering the deceased Darompti alias Nisha. 9. PW-13 Ruma Devi and PW-11 Dalip Singh were said to have been examined by PW-14 Shri R.K. Sharma, Sub Judge-cum- JMIC(I), Mandi, however, subsequently they resiled from their version/statements recorded under Section 154 Cr.P.C. and have not supported the prosecution case. 10. From the scrutiny of prosecution witnesses and material on record, we find that complete and reliable chain indicating that the accused Desh Raj has murdered the deceased Darompti alias Nisha is not complete and other accused persons have endeavoured to remove the evidences of the offence. The motive of murder was not ultimately proved and no specific material was brought by the prosecution to prove that any demand of dowry was made by the accused Desh Raj and his family members. The dead body was cremated in a mysterious way and in absence of postmortem examination of the dead body (which could not be conducted) the real status position of dead body could not be ascertained in consonance with the version of prosecution case. 11. On close scrutiny of the prosecution witnesses and the material on record, the prosecution has failed to bring home guilt against the accused-respondents. In our considered view, learned trial Court has rightly arrived at the conclusion that the ...6... prosecution has not been able to prove its case beyond reasonable doubt against the accused-respondents. There is no scope of interference in the judgment of the trial court and appeal being devoid of merit is dismissed. (R.B. Misra) Judge (V.K. Sharma) Judge 19th June, 2010 (virender)