IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 448 of 1999 Date of Decision : July 14, 2010 State of Himachal Pradesh Appellant Versus Rakshpal Respondent Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 Yes. For the appellant : Mr. Vivek Thakur, Addl. Advocate General for the appellant. For the respondent : Mr. Nareshwar Singh Chandel, Advocate, vice Mr. M. S. Chandel, Advocate, for the respondent. Deepak Gupta, J. (Oral) This appeal by the State is directed against the judgment dated 13.7.1999 delivered by the learned Sessions Judge, Kangra at Dharamshala, H.P. in Sessions Case No. 13-K/VII/99 whereby he acquitted the accused of having committed offences punishable under Sections 302 and 201 of the Indian Penal Code. 2. The brief facts of the case are that deceased Sh. Neer Singh had two sons. One son Sh. Jagdish lived at Chandigarh. The other son Rakshpal is the accused who was residing at Dharamshala. The Whether reports of Local Papers may be allowed to see the judgment? Yes. 2 deceased had one house in village Rehloo which he had partitioned between his two sons. The deceased himself was living in that portion of the house which had fallen in the share of the accused. It also stands established from the evidence on record of Smt. Saina Devi (PW-2) was working as a domestic help with the deceased for about two and a half years prior to his death. On 23.8.1998 accused along with one fitter and three other persons came to his house at village Rehloo for the purpose of fitting taps in the house. At about 4.30 p.m. the fitter and the other three workers left the house. At night the deceased slept in the verandah, the accused in the room which had fallen to his share and Smt. Saina Devi (PW-2) in the room which had fallen to the share of Jagdish. It is also not disputed that next morning Sh. Neer Singh was found dead with injuries on his body. It is not disputed before us that the deceased had not died a natural death and had been murdered. 3. The prosecution version is that the accused and his father had some altercation on 23.8.1998 and at night time the accused murdered his father by beating him to death. The whole case of the prosecution hinges around the statement of Smt. Saina Devi (PW-2) who stated that some time in the night between 9.00 to 11.00 p.m. or later she heard Sh. Neer Singh pleading that somebody should save him. She also heard the accused retorting that deceased Sh. Neer Singh had been able to save himself from Sh. Veenu son of the other brother Jagdish but would not be able to save himself from the accused. According to this witness she was extremely scared 3 and therefore she did not raise an alarm. Next morning she saw the dead body of Sh. Neer Singh and there was blood in the verandah. Accused was in his room. She went out of the house to fetch milk. She met Sh. Lachhman (PW-7) and told him about the occurrence. According to her at about 8.00 or 9.00 a.m. the accused himself went to the village. However before going the accused handed over to her some clothes which were wet and asked her to put out those clothes for drying. 4. According to the prosecution the wheels of the police were set into motion by Sh. Karan Singh (PW-4) who sent a telephonic message to Police Station, Shahpur which was recorded in the Daily Diary at about 11.30 a.m. on 24.8.1998. This report is Ext. PW 10/A. Thereafter police went to the spot and the statement of PW-2 was recorded purportedly under Section 154 of the Code of Criminal Procedure. This statement is Ext. PW 2/A. On the basis of this statement F.I.R. (Ext. PW 10/B) was registered. The police investigated the matter and various articles which were allegedly connected with the offence were taken into possession and even sent for chemical examination. The place of occurrence was got photographed, statements of the witnesses recorded and the dead body of the deceased subjected to post mortem by Dr. C. S. Rathore (PW-1). After completion of the investigation challan was filed in the Court. Since the offence was exclusively triable by the Court of Sessions the case was committed to the Sessions Court. The accused was charged with having committed offences detailed 4 hereinabove. After trial the accused has been acquitted. Hence this appeal by the State. 5. We have heard Sh. Vivek Thakur, learned Addl. Advocate General for the State and Sh. Nareshwar Singh Chandel, learned vice counsel appearing on behalf of the accused. 6. The star witness of the prosecution is Smt. Saina Devi (PW-2). If her statement is believed then the appeal will have to be accepted and the accused convicted. However, the learned trial Court has not believed her statement for various reasons. As detailed hereinabove according to PW-2 on 23.8.1998 an altercation took place between the accused and his father (the deceased) when the accused complained to his father that the father was eating away the pension of the mother and the deceased replied that he was entitled to the pension since the mother of the accused had nominated him in the pension papers. 7. According to Smt. Saina Devi (PW-2) she in the evening prepared meals and after taking meals deceased Neer Singh slept in the verandah, accused in his room and she in the room which had fallen to the share of Jagdish. Somewhere at night at about 9, 10 or 11 p.m. or may be later she heard the cries of Neer Singh pleading that he be saved. She looked out of the window and saw that the accused was sitting on the chest of his father and beating him. He was giving blows with his hands. According to her she did not raise an alarm as she was scared for her own life. She went to sleep and got up in the morning. Then she saw the dead body of the deceased 5 in the courtyard and blood in the verandah. Then she decided to get milk for accused and went to collect water when she met Lachhman (PW-7) and informed him about the occurrence. After she came back the accused told her that the clothes are wet and she should hang the same for drying. Later at about 8.00 or 9.00 a.m. the accused himself went to the village and thereafter police came and recorded her statement Ext. PW 2/A. This witness has been cross examined and there are certain aspects of her statement which cannot withstand judicial scrutiny. According to the defence the witness should have raised an alarm in the night itself. This may have been normal human reaction. But as held by the learned trial Court each person reacts differently to each situation. We cannot loose sight of the fact that this witness is an elderly lady, therefore, her explanation that she was scared and therefore did not raise alarm cannot be said to be false. 8. However, her conduct thereafter is highly un-natural. It cannot be believed that this lady who had witnessed such a horrific incident where her master with whom she had been working for the last two and a half years was being beaten by his son could go to sleep. If this witness was of such a timid nature she could not have gone to sleep. Assuming that she went to sleep, the first thing she should have done in the morning in a natural course was to go out and inform the villagers about it. This is not her reaction. According to her statement in Court she first thought that she would ask the accused whether he wanted milk. This cannot be a reaction 6 of a person who had seen the accused beating his father and also seen the dead body of the father in the morning. According to her thereafter she went to collect water and by chance met Lachhman and told him about the occurrence. This is also not a natural human conduct. Admittedly she was neither threatened by the accused nor under restraint. Doors were open and natural human conduct was to rush out of the house and inform all the villagers of what had happened. These two factors by itself make this witness unreliable and her statement unworthy of credence. It would also be pertinent to mention that there are number of contradictions in the statement of this witness recorded in Court when compared with the statement recorded under Section 154 Cr. P.C. (Ext. PW 2/A) as well as statement made before the Magistrate under Section 164 Cr. P.C. According to this witness she had told Sh. Lachhman (PW-7) about the incident. However Sh. Lachhman gives a totally different version. He was declared hostile but stuck to his version that PW-2 never told him about any such occurrence. 9. Sh. Om Parkash (PW-6) stated that Sh. Lachhman (PW-7) had told him that the accused had killed his father Sh. Neer Singh and he had been given this information by Smt. Saina Devi. According to him Sh. Lachhman told him this fact at about 8.30 a.m. This witness did not care to approach the police or any other villager with this information. Even his statement was not ever recorded by the police and it was only in Court when he was examined on 4.5.1999 about one year after the incident that he for the first time came out 7 with this version. Therefore, no reliance can be placed on the statement of this witness. 10. Sh. Karan Singh (PW-4) stated that at about 8.00 or 8.30 a.m. on 24th August the accused Rakshpal Singh came and told him that something had happened to his father . He along with Sh. Ashok and Sh. Karan Parmar and two – three other persons went to the house of the accused. He saw the dead body of the deceased lying in the courtyard. They suspected it to be a case of murder and thereafter he came to his house and gave a telephonic message to the police. He is categorical that he gave the telephonic information to the police at 8.30 a.m. or soon thereafter. He had informed the police that there is a murder in the village and they should come to the village. Police Station, Shahpur is barely at a distance of 4 k.m. from the site of occurrence. This witness states that police reached after half an hour which means that the police reached at 9.00 or 9.15 a.m. If this be correct then there is no explanation as to why wrong timings was given in the Daily Diary Ext. PW 10/A. It shows that the information was received at 11.30 a.m. Even according to PW-2 it was between 8.00 and 9.00 a.m. that the accused had gone out of his house and the villagers had been informed. Therefore, it is apparent that this Daily Diary report is not a correct recording of the information given and the police has doctored the documents. 11. Even as per police information was received at 11.30 a.m. about the murder having taken place. Police should have reached the spot within 15 to 20 minutes at the latest. Police already knew 8 that it was a case of a murder. It would not have taken very long to find out that there were only three persons in the house in the night and therefore statement of Smt. Saina Devi (PW-2) and Rakshpal (accused) should have been recorded then and there. However, according to police the statement of Smt. Saina Devi was recorded at 1.30 p.m. There is no explanation why it took one and a half hours to record her statement. 12. In fact it is apparent that this statement was not even recorded at 1.30 p.m. and has been ante-timed. PW-2 in her examination in chief stated that the police recorded her statement and according to her, her statement was recorded at the spot. 13. According to Sh. Ashok Kumar (PW-3) at about 9.30 a.m. accused came and informed him and other persons about his father lying injured and thereafter police was called. He states that police came at 1.00 p.m. which is contrary to what has been stated by Smt. Saina Devi (PW-2) and Sh. Karan Singh (PW-4). There is another reason to hold that the investigation has not been fair and the documents have been doctored. Even if the prosecution case is taken at its face value F.I.R. Ext. PW 10/B was recorded at 2.05 p.m. We are dealing here with a case of murder and once F.I.R. was recorded it was incumbent upon the police to have forthwith sent intimation of the recording of the F.I.R. to the Magistrate in terms of Section 157 Cr. P.C. This Court can take a judicial notice of the fact as also observed by the learned trial Court that Police Station, Shahpur is on the main National Highway connected by 9 motorable road to Dharamshala/Kangra both of which places have Judicial Magistrates. The distance of Shahpur from Dharamshala is barely 20 kms. The endorsement of the Judicial Magistrate on the F.I.R. Ext. PW 10/B shows that the same was received by him on 24.8.1998 at 9.00 p.m. Why did it take seven hours for the police to produce this F.I.R. before the Magistrate? There is no convincing or plausible explanation for this delay and therefore the defence version that the police used this time to create evidence cannot be just discarded. 14. The fact that the investigation has not been fair is also borne from the cross examination of PW-2 who admits that when her statement was recorded before the Magistrate she was being tutored time and again by the police officials to state certain facts before the Magistrate. She has also very candidly admitted that she was also threatened by the police that in case she did not state everything then she and her son could also be involved in the case. As such it would be highly imprudent to place much reliance on her statement. Once the statement of PW-2 is discarded there is no other material to connect the accused with the case. 15. According to the prosecution the motive was the fight which had taken place on 23.8.1998. Here also there are two different versions. According to Smt. Saina Devi (PW-2) the fight took place with regard to the pension of the mother of the accused whereas according to Sh. Ashok Kumar (PW-3) the fight took place because the accused wanted to demolish the bath room and the latrine and 10 the father did not allow him to do so on account of the fact that these had fallen to the share of Jagdish the other brother. Therefore, there are two different versions as to why altercation took place. Even if it be believed that some altercation had taken place between the father and the son we do not think that this by itself would be sufficient motive for a son to murder his father especially when it is the evidence of the prosecution itself that the father was residing in that portion of the house which had fallen to the share of the accused. This shows that the relations between the father and the son were not strained. 16. In view of the above discussions we find no merit in the appeal which is accordingly dismissed. Bail bonds furnished by the accused are ordered to be discharged. (Deepak Gupta), Judge. (Sanjay Karol), Judge. July 14, 2010 (PK)