IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No. : 121 of 1998. Decided on: 19.03.2010. _________________________________________________________ State of Himachal Pradesh. …Appellant. -Versus- Raj Kumar and another. …Respondents. Coram: The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1. __________________________________________________________ For the appellant : Mr. Ramesh Thakur, Assistant Advocate General. For the respondents : Mr. Dharamvir Sharma, Advocate. ---------------------------------------------------------------------------------------- Surjit Singh, Judge(Oral) : By means of the present appeal, under section 378 of the Code of Criminal Procedure, the State has sought reversal of the judgment of acquittal dated 27.12.1996, passed by learned Sessions Court in a case under sections 302/404/201 read with section 34 of the Indian Penal Code, which was instituted by the Police against the respondents. 2. Case of the prosecution is that on 14th March, 1993, a Yagya (feast) was arranged by one Gorju in village Bhor, Police Station Sundernagar. All the residents of that village, who 1 Whether the reporters of the local papers may be allowed to see the judgment? belonged to the community of said Gorju, were invited. Invitees included deceased Panjki Devi and the members of her family, as also the respondents (accused). PW-14 Narain Singh, a son of deceased Panjki accompanied by some other members of the family, went to enjoy the feast in the afternoon and returned around 5 P.M. Thereafter, the deceased accompanied by respondent Vidya Devi, her sister-in-law, went to Gorju’s place. The other respondent Raj Kumar, who is the husband of Vidya Devi, it appears, was already present at Gorju’s place. Liquor was served to all the invitees by Gorju. It was consumed by the deceased also. Around 9:30 P.M., deceased accompanied by the respondents left Gorju’s house. The deceased did not reach home that night. Her son Narain Singh thought that she might had stayed back at the house of Gorju. Next morning, Narain Singh was informed by one Soni Ram that the dead body of his mother was lying in the fields behind the house of Chilu Ram (PW-3). Police was informed. PW-18 Chaman Lal, the then S.H.O., Police Station Sundernagar reached the spot. He saw the dead body. Clothes worn by the deceased were dry, even though it had rained in the night. There were no ornaments on the dead body, though according to PW-14 Narain Singh, the son of the deceased, latter had gone wearing a silver Mangalsuter, a golden nose pin, golden ear rings and a golden Chak. Inquest was conducted and requisite forms Ex.-PA were filled in. Dead body was sent to Zonal Hospital Mandi, where PW-5 Dr. L.D. Vaidya conducted the post-mortem examination. The doctor did not notice any injury or sign of injury on the dead body, nor did he notice any ligature mark. On dissection the neck tissue also, no sign of congestion or sub- cutaneous haemorrhage were noticed. The doctor gave a tentative opinion that the cause of death was asphyxia. Viscera was preserved and sent to the Chemical Examiner, who found .33% alcohol in the blood. Respondents were taken into custody. Respondent Vidya Devi in the course of interrogation, made a confessional statement on 16.3.1993 that she had kept concealed a Chak, a pair of ear rings and Mangalsuter in a field in a small packet and could get the same recovered. That disclosure led to the discovery of Chak Ex. P-25, a pair of ear-rings Ex.P-26 and Mangalsuter Ex. P-27, which were taken into possession vide memo Ex.PW-14/A. Memo of the alleged statement is Ex. PC. On 18.3.1993, another disclosure statement was made by Vidya Devi, which led to the discovery of a bottle bearing label of Una No. 1 country liquor. According to the prosecution, the deceased was offered liquor by the respondent from that bottle at their place before she was done to death. Respondents were charged. On completion of investigation, Judicial Magistrate concerned committed the case to the Sessions Court after complying with the requirement of section 207 of the Code of Criminal Procedure. Both the respondents were charged with offences, under sections 302/404/201 read with section 34 of the Indian Penal Code. They pleaded not guilty to the charge. Learned Trial Court put them on trial. Prosecution examined 18 witnesses to bring the charge home to the respondents. It sought to prove the following circumstances to link the respondents with the commission of crime; (a) the deceased was last seen alive in the company of the respondents; (b) ornaments of the deceased, i.e. Chak Ex.P-25, ear rings Ex. P-26 and Mangalsuter Ex. P-27, were recovered at the instance of respondent Vidya Devi within a couple of days of the commission of the crime; and (c) the deceased did not die a natural death per medical evidence. Learned trial court did not believe the prosecution version. It observed that none of the circumstances sought to be proved by the prosecution, stood proved beyond reasonable doubt. Consequently, the respondents were acquitted. We have heard the learned Assistant Advocate General, as also the learned counsel representing the respondents and scrutinized the record. From critical analysis of the evidence, it appears that prosecution’s story about the deceased having gone to Gorju’s house wearing ornaments may not be true and that this is the result of embellishment. This is demonstrated from prosecution’s own evidence. Statement, under section 154 of the Code of Criminal Procedure Ex. PW-9/B of PW-14 Narain Singh, purports to have been recorded at 9 A.M. on 15.3.1993. Case on the basis of this statement was formally registered at 9:30 A.M. vide F.I.R. Ex. PW-9/A. The copy of the F.I.R. reached the concerned Judicial Magistrate, who is stationed at the same place where the F.I.R. was registered, at 8:00 P.M., or say more than 10 hours after the registration of the case. No doubt, in the statement under section 154 of the Code of Criminal Procedure Ex. PW-9/B, as also the F.I.R. Ex. PW-9/A, it is mentioned that the deceased had gone wearing ornaments, but in the inquest report which is supposed to have been prepared soon after recording of the statement Ex. PW- 9/B, there is no mention that the deceased was wearing ornaments, when she left her place. There were no ornaments on the dead body when the inquest was conducted. This is prosecution’s own case. Now, if the inquest was conducted after the statement Ex.PW-9/A had been recorded and the ornaments were not there on the dead body, the investigating officer of the case, who was of the rank of Inspector of Police at that time, could not have missed to record this fact in the inquest report, it being very vital and important fact, because the recovery of the ornaments could have led to the killer(s). Also, we find from the evidence of the prosecution that its story of recovery of ornaments at the instance of respondent Vidya Devi may not be correct. Vidya Devi allegedly made a disclosure statement in the presence of PW-16 Bhubneshwar Lal, who was the Pradhan of the Panchayat those days and one Shri Ram Lal. Bhubneshwar Lal (PW-16) did not support prosecution story regarding making of disclosure statement and even the recovery of the ornaments at the instance of respondent Vidya Devi. Ram Lal the other witness was not examined. It is only the Investigating Officer, namely, Chaman Lal (PW-18) who testified that respondent Vidya had made a disclosure statement. Chaman Lal’s testimony cannot be believed without corroboration, once it appears from the evidence that he played a role in the embellishment of the earliest version by getting incorporated therein that the deceased had gone wearing ornaments. Prosecution examined two witnesses, namely PW-7 Rukmani, a relative of the deceased and PW-15 Nika Ram, a shop keeper, both of whom testified that the deceased was in the company of the respondents when they were going towards their house. The deceased being the resident of the same hamlet, as the respondents, was supposed to have gone to her own house instead of going with the respondents, specially when her mother-in-law and son Narain Singh aged about 18 years, were present in her house and were supposed to be waiting for her. Therefore, in our considered view, the mere fact that the deceased was in the company of accused (respondents) when they were returning home from Gorju’s place does not prove that the deceased in fact went with the respondents to their place and there she was done to death. This is especially so when no evidence has been led indicating that the deceased was done to death at the residence of the respondents. Medical evidence also does not corroborate the prosecution story because no injury, whatsoever, was noticed on the dead body. The Investing Officer of the case, no doubt, stated that he had noticed some bluish marks on the neck and a lip of the deceased, but the doctor who conducted the post- mortem examination of the deceased, namely Dr. L.D.Vaidya (PW-5), very categorically stated that there was no external injury, and that even on dissection of the neck, no injury or sign of use of force was noticed. The doctor admitted that liquor at times can cause asphyxia, especially when the subject remains in the open for the night in winter season. For the foregoing reasons, we do not think that this is a fit case calling for interference in the judgment of acquittal. Hence, the appeal is dismissed. (Surjit Singh), Judge (Rajiv Sharma) Judge February 25, 2010. (awasthi)