IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.: 276 of 1997 Reserved on : 19.08..2010. Decided on : 27.09.2010 ______________________________________________________________ State of Himachal Pradesh …Appellant. Versus Jeet Ram and others …Respondents. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting? 1 Yes. For the appellant : Mr. Rajinder Dogra, Addl. Advocate General. For the respondents : Mr. Neeraj Sharma, Advocate, vice Mr. Vinay Thakur, Advocate. _______________________________________________________________ V.K. Sharma, Judge. The State is in appeal against the judgment dated 28.02.1997 of the learned Additional Sessions Judge, Shimla, Himachal Pradesh, whereby the respondents who shall here-in- after be called as ‘the accused’ (in short A-1, A-2, A-3 and A-4, respectively) were tried for the offences under Sections302, 201 read with Section 34 of the Indian Penal Code and were ultimately acquitted. 2. The brief facts of the case are that on 12.10.1993, statement Ex.PA under Section 154 Cr.P.C was made by the complainant (PW-1 Shri Chet Ram) to the police of P.S 1 Whether reporters of the local papers may be allowed to see the judgment? 2 Theog, Distt. Shimla, which is in Hindi and when translated into English, is to the following effect:- “Stated that I have three sons and one daughter. On 3.10.93, my eldest son Ramesh Kumar had gone to ‘Chhinj’ (wrestling fair) at Cheog. He did not return home that evening. On 4.10.93, Shri Raju s/o Dada, resident of village Kilra returned to us the sweater of my son, which he had worn for the fair. He had disclosed to my mother in law on 3.10.93 evening that Ramesh had alighted at Theog and had told that he would return home tomorrow. As Ramesh did not return till 5-10-93, we started searching for him in our relations. But as we could not find him anywhere, I lodged a missing report in Police Station on 9.10.93 in the morning. After lodging the report, my relatives went towards Oad Nallah in search of Ramesh. And they found his (Ramesh’s) dead body in Oad Nallah inside the water. I suspect that someone has killed my son and then thrown or kept the dead body there. Inquiry/investigation may be conducted in this behalf and accused persons brought to book.” 3. Consequently, F.I.R Ex.PB came to be recorded on the same day, that is, 12.10.1993. 4. The dead body of the deceased was retrieved by the police from Oad Nallah. It was sent for postmortem examination and report Ex.PC was obtained. In the provisional opinion of PW-7 Dr. Ramesh Sharma, the deceased had died due to asphyxia. As per FSL report Ex.K, no poison was detected in the viscera of the deceased. 3 5. The genesis of the prosecution case and motive for commission of the alleged offences by the accused as noticed by the learned trial Judge is as under:- “The investigation revealed that PW-2 Smt. Subhadra daughter of PW-8 Rolu Ram, R/O village Odde stood married sometimes in 1991 in the village Kilra of PW-1 Chet Ram complainant. PW-1 had given birth to one child from the lions of her husband Bhagat Ram. It had been alleged that the child had not survived. Thereafter PW-2 had left for the house of her parents in village Odde. PW-2 had not returned to the matrimonial house on the ground that she was being ill-treated by her in- laws. Shri Ramesh Kumar, son of PW-1 Chet Ram complainant had developed illicit relationship with PW- 2 in village Kilru. Even after PW-2 had started residing with her parents, Shri Ramesh Kumar had been visiting her in village Odde and had been staying there. The illicit relationship of PW-2 and Shri Ramesh Kumar was within the knowledge of Shri Bhagat Ram (husband of PW-2). Shri Ramesh Kumar was also somehow related to Shri Bhagat Ram. The accused person No.4 Deep Ram was maternal uncle of Shri Bhagat Ram (husband of PW- 2). The accused person No.4 had not approved of the continued desertion of Smt. Subhadra (PW-2) of her matrimonial house. The accused person No.1 Jeet Ram was stated to have negotiated the marriage of PW-2 with Sh. Bhagat Ram. The accused person No.1 had also tried to re-concile the matrimonial dispute between PW-2 and her husband. The accused person No.1 and 4 were stated to have taken exception to the illicit relationship of PW-2 with Shri Ramesh Kumar.” 4 6. On completion of investigation the accused were sent up to face trial. On being charged, they did not plead guilty and claimed to be tried. The prosecution evidence followed. In all 11 witnesses were examined. 7. On close of the prosecution evidence the accused were examined under Section 313 Cr.P.C, wherein they have set up defence of denial simpliciter, innocence and false implication on account of enmity with the prosecution witnesses. However, two witnesses namely DW-1 Constable Sarwan Singh and DW-2 Constable Munna Lal have been examined in defence to show that A-4 Deep Ram, who is a police constable and was posted at Police Post Fagu at the relevant was in fact on duty at the said post during the night intervening 3/4-10-1994. 8. After conclusion of the trial all the accused were acquitted by the learned trial Court by extending benefit of doubt to them. Being aggrieved the State has laid challenge to the impugned judgment dated 28.02.1997, which is supported by the accused. 9. We have heard the learned Additional Advocate General for the appellant-State and the learned vice counsel for the respondents-accused and perused the record. 10. The prosecution case hinges mainly on the testimony of PW-2 Smt. Subhadra, which has not been believed by the learned trial Court. The statement made by her in chief examination has been re-produced by the learned trial Judge in 5 the impugned judgment in extenso and the same is to the following effect:- “I was married to Bhagat Ram three years back. After the child birth I came to reside with my parents in village Oad as my inlaws did not treat me well after the death of the child. There was a Chhing in Fagu on 3rd. Ramesh and Gian Chand had come to my house on that day. After sitting for sometimes they went away. At about 6 O clock in the evening they again came back. I served them food. I told them to sit inside. In the meantime my father, Jeet Ram and Puran Chand came there. All three of them had taken a lot of drinks. Thereafter I served food to three of them but Puran Chand did not take the food. Thereafter myself and my mother took food. Thereafter I went to fetch water to the Nallah and there I found a cigarette burning and noticed Ramesh resident of Kilra coming. I enquired from him as to from where he was coming and he said that he was coming from Fagu Mela. I invited him to come to my house as he was dead drunk but he refused and asked to all were present in my house. And I told him that Jeet Ram Puran Chand were in the house. Ramesh Chand told that he will not come to my house as he apprehended dangers from Jeet Ram and Puran Chand. So I told him to stay back. Then I went to leave the bucket of water at my house and Jeet Ram remarked that did you fetch the water from some other Nallah as you had taken so long. I did not answer him and only told my mother that I am going to the house of my grant mother. And I again came to the Nallah. Since he was dead drunk I insisted on taking him to my house but he kept on repeating that he apprehends danger from Jeet 6 Ram. However I took him to the cow-shed of the house. And left him there. He told me to go back and also told that I should come back when every body is sleep. By the time I went back my sister had made beds for every body inside the house but Jeet Ram insisted on for sleeping outside in the verandah. Accordingly I laid down his bed outside. My parents and my sister and myself put our beds in the kitchen. I thereafter went stealthly to meet Ramesh and when we were talking I heard some foot steps and told Ramesh to keep quite but Ramesh told that let whosoever there is to come inside and he will see. Thereafter Jeet Ram came inside. Jeet Ram caught hold of me with one hand and with other hand he caught Ramesh and before I could question him he gagged my mouth. In the meantime Deep Ram, Gian Chand and Ramesh came inside in the same order. Deep Ram gave a danda blow to Ramesh deceased. Jeet Ram remained in side and kept my mouth gagged whereas the others took away Ramesh saying that there will be noise inside. Jeet Ram kept on threatening me and told that I will be done away to death if I say any thing about the occurrence. And so accordingly I did not tell to any body under his threat. Thereafter he told me to go home and gave me a fist blow on my stomach. He also showed me poison and threatened that he will administer the same to me. He also threatened that I should keep on sleeping on the bed and if I come out he will cut my throat. So I remained sleeping due to his threat. Jeet Ram came back in the morning as I heard his foot steps. My mother served tea. Ramesh and Gian Chand left thereafter but Jeet Ram and Puran Chand they took food and then left the house. I enquired from Jeet Ram in the morning about Ramesh but he threatened me and told me that it 7 is none of my business. And that Ramesh is alright. He also told me if some body comes in search of Ramesh I should go for them in search but should not tell them any thing. Thereafter in the evening Deep Ram and Jeet Ram again came to our house and Deep Ram and my father took one glass of wine again. Thereafter I went with them to show them the path and I kept on enquiring about the Ramesh and when they were shown the path Deep Ram caught hold of me and raped me by taking me aside. Both the persons Jeet Ram and Deep Ram raped me. He gave me Rs. 20/- and told me to come to Fagu and also that he will tell me every thing at Fagu. However I did not go to Fagu. Thereafter also Jeet Ram kept coming on our house and whenever I found him alone I enquired from him about Ramesh but he kept on threatening me and told that he is very aquittance with the police and he will eliminate me. If I say any thing to any person. Chet Ram and Pritam Singh came on the next day to enquire about Ramesh but Jeet Ram signaled to me not to speak anything and accordingly I told them that Ramesh had not come there. And then after those people left Jeet Ram told that Ramesh must be lying some where in the Nallah under the influence of liquor. Thereafter police kept on coming but initially did not disclose to the police any thing as I was scared but later when I was given full assurance by the police I narrated the entire happening. Ramesh was my brother in law by village relation and since the time he had come to my house with ‘Sohag’ I had illicit relations with him. I also made similar statement before the Magistrate Theog. All the four accused persons whom I have named above are present today in the court.” 8 11. On appraisal of the deposition of PW-2 Smt. Subhadra, which on the face of it appears to be a make believe story, the learned trial Judge has concluded that much reliance cannot be placed on her testimony for the reasons that she had deserted her husband and was in an illicit relationship with the deceased. PW-10 SI/SHO Ram Saran, who is the Investigating Officer of this case has stated during cross examination that he had recorded the statement of Shri Bhagat Ram, husband of PW-2 Smt. Subhadra, who had disclosed that she was not of good character and was having illicit relations with so many persons. She has stated that she was raped by A-1 Jeet Ram and A-4 Deep Ram in the evening of 4.10.1993. According to her, after eliminating the deceased both these accused had returned to the house of PW-8 Rolu Ram in the evening of 4.10.1993, where they had taken liquor together with PW-8 Shri Rolu Ram. Thereafter the said accused who wanted to visit the adjoining village Dhanj requested her to guide them to the said village. Accordingly, she along with her younger sister Subdhara had accompanied them on their way to village Dhanj. On reaching the outskirts of the village, both the accused aforesaid had raped her. At that time her younger sister Subdhara was at some distance. She had not complained against the said accused to anyone. Even the police had not treated her version to be correct and truthful and as such the said accused were not hauled up for the offence of rape. Though, according to PW-2, Smt. Subdhara, she had 9 been terrorised and threatened with death by both these accused, yet her version does not carry conviction as she had not disclosed the matter to her parents, brothers and sisters. 12. It shall be pertinent to notice that statement of PW-2 Smt. Subdhara was recorded by the police under Section 161 Cr.P.C as late as 27.4.1994, that is, after about seven months from the alleged occurrence. It was only thereafter that her statement under Section 164 Cr.P.C mark ‘B’ was recorded on 2.5.1994. Her supplementary statement under Section 161 Cr.P.C was recorded even thereafter on 3.6.1994. Her testimony is also liable to be discarded for these reasons as well. 13. The disclosure statements allegedly made by A-1 Jeet Ram (Ex.PE), A-2 Gian Singh (Ex.PG) and A-3 Ramesh Chand (Ex.PF) under Section 27 of the Evidence Act on 1.5.1994,that is, after about seven months from the alleged occurrence are liable to be excluded from consideration simply for the reasons that on the one hand the same are inculpatory in nature and as such hit by Section 25 of the Evidence Act and on the other the dead body of the deceased which according to these accused had been dumped by them in Oad Nallah, had already been recovered from the said Nallah as far back as 9.10.1993. 14. The testimony of PW-3 Shri Puran Chand with regard to extra judicial confession allegedly made to him by A-1 Jeet Ram that he had murdered the deceased, has also been rightly rejected by the learned trial Court as the statement to this effect 10 having been made by him at a highly belated stage, that is, after about six months from the alleged occurrence. 15. On an appraisal of the evidence on record and taking into consideration the facts and circumstances of the case and on an overall view of the matter, we are satisfied that the inference drawn by the learned trial Court that the prosecution has not been able to bring home guilt against the accused beyond reasonable doubt and thereby extending the benefit of doubt to them, is born out of the materials on record and such finding does not require any interference by this Court. Accordingly, the appeal is dismissed. (R.B. Misra) Judge. (V.K.Sharma) Judge. September 27, 2010. Lsp*