IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. A. No.291 of 1997. Decided on : 20th August, 2010. State of H.P. … … Appellant. -versus- Gulabi Devi & Ors. … … Respondents. Coram: Hon’ble Mr. Justice R.B. Misra, Judge. Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting? For the appellant : Mr. Rajinder Dogra, Addl. Advocate General and Mr. Anil Jaswal, Deputy Advocate General. For the Respondents : Mr. Yoginder Paul, Advocate. R.B. Misra, J. (oral): The present criminal appeal has come up for consideration after the leave to appeal has been granted under Section 378 (3) Cr.P.C., in reference to the impugned judgment, dated 23.11.1996, passed by the learned Sessions Judge, Mandi, Kullu and Lahaul-Spiti Districts, at Mandi, H.P., in Sessions Trial No.5 of 1995, acquitting the accused-respondents for the alleged offence under Section 302 read with Section 201 of the Indian Penal Code, whereas accused respondent No.2 Narain Singh was charged for the offence of the murder under Section 302 IPC, the remaining two accused i.e. respondents No.1 and 3, namely Smt. Gulabi Devi and Niku stood charged under Section 201 of the Indian Penal Code for causing disappearance of offence i.e. dead body of the deceased. 2. It has also brought to our notice that Niku son of Sh. Labh Singh is dead as such criminal appeal in reference to the accused is abated. ------------------------------------------------------------------------------------------------------- Whether reporters of Local Papers may be allowed to see the Judgment? 2 3. In order to adjudicate the criminal appeal, it is necessary to give the factual back ground of the case. 4. The prosecution case is that Dhiana Ram, a carpenter by profession, had been living with Shri Hariya (PW-17) son of Shri Sewak Ram (PW-15) and used to prepare agricultural wooden implements and in that connection had been living outside for about 5-6 days from the village. On 16.12.1993, PW-17 Hariya informed his father Shri Sewak Ram PW- 17 that said Shri Dhiana Ram did not return for the last 5 days and on search, his dead body was found in the field near the house of the accused persons and some drag marks were noticed on the body of the deceased. Some scratches and other injuries were also noticed on the body. On an investigation, the FIR Ext. PE was registered and the accused-respondents were charged for the offence under Sections 302 read with Section 301 of the Indian Penal Code. 5. In order to prove its case, the prosecution has examined as many as 19 witnesses, whereas, the respondents/accused, through their statement under Section 313 Cr.P.C., have denied the charges and prosecution case. 6. To prove its case, the prosecution has examined PW-1 Parma Nand, PW-2 Karam Singh, PW-3 Niku Ram, PW-4 Ghanshayam, PW-5 Khem Chand, PW-6 Neelamni, PW-7 Hukam Singh, PW-8 Beli Ram, PW-9 Jai Singh, PW-10 Nota Ram, PW-11 Tulsi Ram, PW-12 Munshi Ram A.S.I., PW-13 Dharam Pal, PW-14 Dr. Vijay Kapoor, PW-15 Sewak Ram, PW-16 Som Dutt, PW-17 Hari Singh, PW-18 Kishori Lal and PW-19 Shri R.S. Guleria, Deputy Superintendent of Police. 7. Smt. Gulabi Devi admitted that Dhiana Ram had visited her house during the night under the influence of liquor. She further admitted that she used to live alone as her son Narain Singh used to remain out, as he was a labourer, but had returned on the same day. Shri Dhiana Ram deceased had handed over Rs.10/- to him for liquor and when her son had left the place, the deceased grappled with her and broke open 3 the string of her Salwar and tore off her clothes in order to rape her. However, she gave him fist blows. In the meantime, her son returned after an hour and on seeing him she felt ashamed and pushed the deceased out. He fell unconscious and thereafter both of them lifted him inside, where he was kept for the night and the next morning her son went to earn his livelihood, but Dhiana Ram was dead. 8. According to Narain Singh accused he returned during the night. Dhiana Ram was drunk and Narain Singh was given Rs.10/- for liquor and on his return grappled with his mother. The deceased was naked and his mother was also naked. His mother pushed Dhiana Ram, whereupon he become unconscious and brought him inside. Next morning, he left for the work and thereafter he did not know what had happened. 9. PW-14 Dr. Vijay Kapoor in his cross-examination has stated that the type of fracture as caused to the deceased could be caused by compression or violent embracing, which stands admitted. In case a person is embraced by a lady, who is assaulted for rape, such type of fractures can be caused. 10. PW-17 Hari Singh was also examined on the same day i.e. on 20.11.1995. PW-19 Deputy Superintendent of Police R.S. Guleria was also examined. 11. On careful scrutiny of the prosecution witnesses, we notice that there is nothing on evidence that Narain Singh returned after going to bring the liquor and he caused the death of Dhiana Ram by beating him with ‘Suhaga’, except the statement of PW-2 Karam Singh, who on examination had told that Narain Singh had told him to keep as a servant in his Halwai Shop on 20.12.1993, when he arrived there at about 2.00 PM, he also demanded Rs.300/- per month as salary, but he agreed to pay him Rs.250/- per month. According to him, on 23.12.1993, he left the shop saying that he was going to attend the call of nature and thereafter he never returned. 4 12. PW-3 Niku Ram also deposed that Narain Singh also approached him and told that he had killed his ‘Chacha’ and that he wanted to be employed somewhere and requested to get him helped in giving him employment and he advised him to talk to some shopkeeper. At that time, he was looking puzzled. In the cross-examination, he has stated that there was no other person present when the accused met him. PW-3 went to Shimla and returned after 3-4 months and he did not divulge this fact to anyone in Shimla. 13. The specific defence raised by accused-respondent No.1 Gulabi Devi in answer to Question No.26 of the statement under Section 313 Cr.P.C. is to the following effect: “Dhana Ram visited my house during night he was drunk, my husband had died. I was alone my son was a labourer and had come to the house on the said day. Dhana Ram handed Rs.10/- to my son for liquor; then he grappled with me. Broke open my string of salwar and tore off clothes. My son Narain returned after about one hour. I had given him enough good fist blow. On seeing my son, I felt ashamed and pushed him out. He got unconscious, we lifted him inside. He remained there for the night. My son went to earn his livelihood. Dhana Ram was dead. Dhana Ram wanted to rape me.” 14. Similarly, accused respondent No.2 Narain Singh, has setup the following defence in response to Question No.28 of the statement under Section 313 Cr.P.C: “I returned to home during night. Dhina was drunk. He gave Rs.10/- to me for liquor. When I was returned he was grappling with my mother. He was naked and my mother was also naked. My mother pushed him out, he was unconscious. We brought him inside. Thereafter I do not know as I had left for work.” 15. After going through prosecution witnesses and the material on record, we notice that Smt. Gulabi Devi in her statement under Section 313 Cr.PC narrating the facts and circumstances of the case, in which she has stated that on her giving fist flow the victim/deceased had died of 5 sustaining injuries and become unconscious and subsequently brought inside and when one of the accused has very categorically stated about inflicting injury on the body of the victim deceased in an usual circumstance to save her chastity, honour and has taken burden of assault on her own. In such a situation, it is believed that in these circumstances, the victim/deceased had sustained injuries while Gulabi Devi whose honour was at stake, as, she was going to be sexually assaulted. In such circumstances, obviously her son Narain Singh accused could not remain silent spectator. However, there appears to be no evidence on record to indicate that Narain Singh had inflicted injury on victim/deceased. Indisputably, the victim/ deceased Dhiana Ram died on sustaining injuries in the house of Gulabi Devi and Narain Singh. 16. Keeping in view the facts and circumstances on record, the learned Sessions Judge has rightly given benefit of doubt to both the alleged accused Gulabi Devi and Narain Singh for the offences punishable under Section 302 and 301 IPC. Niku has already been stated to be died. 17. In these peculiar facts and circumstance, there is no scope to take different view what has been taken by the learned Sessions Judge. We do not find any merit in the present appeal. Resultantly, the appeal fails and is accordingly dismissed. (R.B. Misra) Judge (V.K. Sharma) August 20, 2010. Judge (mlg)