1 HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No. 438/1997 Decided on September 7, 2010 State of H.P. …Appellant. VERSUS Shamsher Singh ….Respondent. Coram The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge Whether approved for reporting?1 For the Appellant: Mr.Rajinder Dogra, Addl. AG with Mr.Anil Jaswal, Dy.AG. For the respondent: Mr.Neeraj Sharma, Advocate R.B.Misra, Judge (Oral) The present criminal appeal has come up for consideration after the leave to appeal has been granted under Section 378 (3) of the Code of Criminal Procedure, in reference to judgment dated 30.6.1997 passed by learned Sessions Judge, Shimla HP in S.Tr. No. 12-S/7 of 1995, thereby acquitting the respondent / accused for the offence under Section 302 of the Indian Penal Code. 2. The prosecution case is that on 7.12.1994, a post marriage ceremony known as Dhanoj was being celebrated at the house of one Sh. Fina Dass in village Kumbrara. Deceased Babu Ram and accused Shamsher Singh were though not invited to participate in that function, however, participated in that ceremony. Around 3 PM Whether the reporters of the local papers maybe allowed to see the judgment? 2 near the school building, close to the house of said Sh. Fina Dass, Shamsher Singh asked deceased Babu Ram to shun the company of one Tawaru and threatened that in case he did not follow his command he would do him to death. This threat was administered by the accused in the presence of the wife of Sh. Babu Ram, when she went to call him for taking meals. Sh.Babu Ram did not go home with his wife, but remained at the house of Sh. Fina Dass. Around 7 in the evening, the wife of deceased Sh. Babu Ram, namely, Smt. Shanta Devi, sent her husband’s sister Binta Devi to call her husband. Binta Devi went to Sh. Fina Dass’s house, but she was told that the deceased had gone to the house of one Sh. Sodi Ram. Binta Devi on return informed the wife of the deceased accordingly. Around 7.30 PM, Smt. Suraj Mani, wife of Sodi Ram went to Smt. Shanta Devi’s house and asked her to accompany her to her house. Smt. Shanta Devi went with her to Sh. Sodi Ram’s house where she found that Sh. Sodi Ram was standing in the kitchen of his house and was holding her husband Sh.Babu Ram in his arms. She noticed that the body of the her husband was bleeding profusely and there was a pool of blood on the floor of the kitchen. Smt. Shanta Devi then asked her husband as to what had happened, he told her that he had been stabbed by Shamser Singh son of Sh.Suram Dass, with a dagger, thereafter, Sh. Sodi Ram lifted Sh. Babu Ram on his back with a view to carrying him to his house, but when he was passing through the lane behind his house, Sh. Babu Ram breathed his last. Sh. Sodi Ram placed the deadbody of Sh. Babu Ram in the lane. Smt. Shanta Devi then started crying loudly. On hearing her cries, several persons from the village were gathered there. The deceased was having big would on 3 his chest. Smt. Shanta Devi narrated the aforesaid facts to the police on 8.12.1994 at 11.30 AM, when the police arrived in the village, after a report about the death of Sh. Babu Ram lodged at Police Post, Chirgaon by accused Shamsher Singh himself vide report No.3 dated 8.12.11994. A.S.I Incharge Police Post, Chirgaon reduced the aforesaid narration of Smt. Shanta Devi into her statement under Section154 Cr.PC and forwarded the same to the police station, Rohru for formal registration of the case and the case was formally registered vide FIR No. 399 of 1994, on the basis of the said statement. 3. In order to prove its case, prosecution has examined as many as 23 prosecution witnesses, whereas, to his statement recorded under section 313 Cr.PC, accused/respondent has denied the prosecution case. 4. Prosecution has mainly examined PW-1 Smt. Shanta Devi, PW-2 Sh.Sodi Ram, PW-3 Smt. Suraj Mani wife of PW-2 Sh. Sodi Ram, PW-4 Rajinder Kumar, PW-5 Sh.Jiu Nath, PW-6 Sh.Banka Ram, PW-7 Binta Devi, PW-8 Sh. Fina Dass, PW-13 Sh.Sham Lal, PW-14 Doctor Rakesh Dhiman and PW-15 Dr. Ashwani Kumar. 5. We have analyzed the prosecution witnesses and materials on record and we find that that PW-1 Smt. Shanta Devi, wife of the deceased, in her endeavour to support the prosecution case, has stated that on 7.12.1994 at around 3 PM when she went to call her husband for taking meals, at that time, Shamsher Singh had asked her husband to shun the company of one Tawaru and threatened that in case he did not follow his command he would be done to death. According to PW-1, at that time, Rajinder Kumar, PW- 4 was also present there. PW-4, Rajinder Kumar has stated that 4 Shamsher Singh had asked Sh.Babu Ram to leave the company of Tawaru or he would kill him. In the cross examination, PW-4 has stated that no quarrel place between Babu Ram and Shamsher Singh. PW-4 has further stated that Sh.Jiu Nath and Smt. Shanta Devi were also there at that time. 6. PW-5 Jiu Nath has stated that incident had taken place very late in the evening and that after the aforesaid threat was administered by the accused Shamsher Singh, he went to the house of his brother Fina Dass where Dhanoj function was going on and that he was soon followed by deceased Babu Ram and Shamsher Singh accused and that both of them left the house without taking their meals. Binta Devi, PW-4, however, has given different story what was stated by PW-1, indicating that the alleged threat was administered by the accused/respondent at 3. PM. PW-1 has specifically stated that she had called her husband to take meals but he did not come. Not only this, PW-5, Jiu Nath has specifically stated that from the school ground where the threat was allegedly administered, the accused and the deceased went to Sh. Fina Dass’s house and after staying there for some time they left Sh.Fina Dass’s house. In cross examination, PW-5 has stated that Babu Ram left Fina Dass’s house in the night. Such statement of PW-5 shows that deceased Babu Ram did not go home after the accused allegedly threatened him and that thereafter only his deadbody was seen, but Binta Devi, as already noticed, has stated that her brother had left home that day after the sunset. Such statement when seen in the light of the testimony of PW-5, would reveal that the version of PW-1 that 5 threat was administered to deceased by the accused at 3 PM may not be correct. 7. Sodi Ram PW-2 and his wife PW-3 Suraj Mani have stated that when Smt. Shanta Devi arrived and enquired from Sh.Babu Ram as to what had happened to him, latter replied that he had been given a blow of knife on the chest by Shamsher Singh accused, but their testimony cannot be believed in view of the categorical admission by Smt. Shanta Devi, PW-1, in her cross examination, has stated that her husband had already died and she went to Sodi Ram’s house. PW-2 Sodi Ram is said to be witness of the occurrence, who has stated that he was employed on daily wage basis in Andhra Project which is at a distance of about 8 Kms from his house and on the fateful night when he returned form his place of work to his house, Babu Ram deceased came there at about 8 PM and stated that his wife had already gone to sleep and so he called her to serve meals to him and also to Sh. Babu Ram. PW-2 has further stated that his wife served meals to him as also the deceased and again went to sleep but he and the deceased sat besides the fire place. PW-2 has further stated that after tome time, accused Shamsher Singh entered the room, in which he and the deceased were sitting and caught hold of him by the collar of his coat and upon this deceased Babu Ram gave a slap on the cheek of Shamsher Singh accused. PW-2 has further stated that that enraged the accused and he took out a Chhura (knife) and gave a blow on the chest of Babu Ram and thereafter Shamsher Singh fled away from the scene along with knife and PW-2 woke his wife up and asked her to call Babu Ram’s wife. PW-3 Suraj Mani has stated that her husband is employed as a daily wage worker and 6 generally comes late in the night and on the fateful night her husband woke up her and then she served meals to her husband and also deceased Babu Ram, who was in his company. PW-3 has further stated that after serving meals to her husband and the deceased she again went to sleep and that after some time her husband again called her and asked her to call the wife of the deceased as at that time her husband was holding the deceased in his lap. 8. From the testimony of PW-1, PW-2 and PW-3, we notice that the narration given by PW-3 is self contradictory because the genesis of offence, according to PW-2, is that the accused caught the deceased by collar of his coat, which enraged the deceased so much that he slapped the accused on his cheek. But in the cross examination, PW-2 has stated that on that day was wearing only a shirt. When the deceased was wearing shirt, question of accused having caught him by the collar of his coat and this having provoked the deceased to slap the accused, does not arise. In the examination in chief, PW-2 has stated that after giving a blow of Chhura to the deceased, the accused ran away from his house alongwith the Chhura, but in the cross examination has stated that very night after the occurrence had taken place he went to the house of Jiu Nath in the company of one Sh.Mir Dass and accused Shamsher Singh . If the accused had run away after committing the crime as stated in the examination in chief, then how Shamsher Singh could have accompanied the witness to the house of Jiu Nath to inform him about the occurrence. Further if Shamsher had assaulted to the deceased by Chhura, as has been deposed by PW-2, Sodi Ram, then how it is believable that the accused could have gone with Sodi Ram, the sole 7 eye witness to inform the residents of the village about the occurrence. As per testimony of PW-2 Sodi Ram, he would have also not gone in the company of accused to the residences of other persons during night time, out of fear because he being the sole witness, could have not accompanied the accused. It is not believable that when Shamsher Singh, the accused was accompanying Sodi Ram, he could have told the villagers that he (Shamsher Singh) had murdered Babu Ram. PW-5 contradicts the witness with respect to this part of his testimony by stating that Sodi Ram along with Shamsher Singh and Mir Dass came to inform him about the death of Babu Ram in the night of 7.12.1994. Whereas, PW-2 Sodi Ram has stated that someone had killed Bau Ram. PW-2 further denied in his cross examination that some residents of the village including accused Shamsher Singh went to inform the police about the incident on the very night of its occurrence, but the wife of the deceased PW-1 gave a different version by stating that several residents of the village had gone to the police station on 7.12.1994 and the accused was one of them and that the report was lodged at the police station by the accused. Again Sh.Sodi Ram stated that he along with some residents of the village went to the police station to lodge the report of the occurrence and that Shamsher Singh was not among those persons but his statement to this effect is falsified by the contents of the report which was lodged at police post, Chirgaon and also by the deposition of PW-17 Mohan Lal, who entered the said report in the Rojnamcha. The statement of PW-17 Mohan Lal, who recorded the reports, proves that Shamsher Singh was accompanying PW-2 Sodi Ram when the said report was got recorded by him. If Shamsher Singh had got recorded the report, 8 copy Ex PQ, in which nobody is named as an accused ,but only this much is recorded that when the accused came out of his house at night to fetch fuel wood, he spotted the deadbody lying in the lane between the house of PW-2 Sh. Sodi Ram and one Sh.Fimi Ram 9. As per testimony of PW-2 Sodi Ram, only a single blow of Chhura was given by the accused on the chest of the deceased, but the doctor who conducted the post mortem examination, namely, PW- 14, Dr. Rakesh Dhiman, has stated that the two incised wounds observed by him could not have been caused by a single blow. As per testimony of PW-2 Sodi Ram, the weapon used for assault was Chhura, whereas the weapon Ex-1 is a small sized Khukhri. Then it is not believable that how PW-2 Sodi Ram who is supposed to know the difference between Khukhri and Chhura had given a different version. The conduct of PW-2 in shifting deadbody from his house to the lane behind his house points the needle of suspicion over him. Though, it has been stated by Sodi Ram that he carried the deceased from his house when he was still alive, the categorical statement of the wife of the deceased PW-1 Shanta Devi, in her cross examination that her husband had already died when she went to the house of Sodi Ram, gives a lie to the explanation of PW-2. The site plan Ex PR clearly shows that the deadbody was lying at the time of visit of the police in between the houses of PW-2 Sodi Ram and one Fimi Ram. Such fact indicates that the dead body had simply been lifted from the house of PW-2 and was placed in the lane. 10 On analysis of the prosecution witnesses, materials on record and after having gone through the inconsistencies, improbabilities and contradictions in the testimony of the prosecution 9 witnesses, specifically the prosecution witnesses of PW-1, PW-2, PW- 5 and the medical opinion, the learned Sessions Judge has rightly come to the conclusion that the prosecution has failed to prove its case beyond reasonable doubt. In our considered view also, the prosecution has failed to bring home guilt to the accused. Therefore, we find no scope for interference in the impugned judgment. The criminal appeal, being devoid of merit, is accordingly dismissed. ( R.B.Misra ), J. 7th September, 2010 ( V.K.Sharma ), J. (sl) 10