1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 239 of 1997 Decided on August 17, 2010 _________________________________________________________ State of H.P. …Appellant. Versus Ram Saran and Another …Respondents. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge. ¹Whether approved for reporting? For the appellant: Mr.Rajinder Dogra, Additional Advocate General. For the respondents: Mr. Rakesh Jaswal, Advocate. Justice R.B. Misra,J. ( Oral) The present Criminal Appeal has come up for adjudication after the grant of leave to appeal under Section 378 (3) of the Code of criminal Procedure has been granted in reference to judgment dated 9.1.1997, passed by the Learned Sessions Judge, Mandi,H.P., in Sessions Case No. 3 of 1995, under Section 302 read with Section 34 of the Indian Penal Code, acquitting the alleged accused/respondents. 2. ASI Prem Lal of Police Station, Sarkaghat has informed telephonically by S.D.M. Sarkaghat at about 10.30 A.M., that two dead bodies were lying in 'Khati' (Water pond) at village Tihra. The dead bodies were got identified and police took photographs Ex. PW.12/A to Ex. PW.12/E. ASI Prem Lal prepared the inquest reports Ex. PE and Ex. PF. The dead bodies were sent for autopsy. Dr. Arun Kumar (PW.8) had conducted the postmortem and as per opinion of the doctor, the death was 2 caused on account of throttling and not by way of drowning. Smt. Malka Devi (PW.1) widow of Shri Munshi Ram got recorded her statement Ex. PA under Section 154 Cr.PC. on the basis of which case under Sections 302 and 201 read with Section 34 of the Indian Penal Code was registered. According to Smt. Malka Devi, she was married to Munshi Ram (deceased) about 38 years ago. She gave birth to two sons and four daughters. Suresha was her eldest daughter and she was married to one Shri Jagdish and they had a son, namely, Ravi Kumar (deceased), and another daughter Kamla was married to Tara Chand about 12 years back. Tara Chand has two sons and two daughters from this marriage and they are residing in village Tihra, Tehsil Sarkaghat, District Mandi, H.P. The said Kamla alias Pinki has given birth to a daughter about 12 days back. There was some 'Chauke' ceremony on 18.10.1993. Thus, her husband Munshi Ram alongwith Ravi Kumar (deceased) left their village on 17.10.1993 at about 5.00 P.M., alongwith some close relatives to attend 'Chauke' ceremony. On 18.10.1993, at about 9.00 A.M., Tara Chand, accused informed her brother-in-law Parkash, resident of Panjot telephonically that he should come to village Tihra because Munshi Ram and Ravi Kumar, both were not traceable, whereas, the bag of Munshi Ram was found in 'Khati' and further that this matter be not disclosed to any one, therefore, on this information, Parkash aforesaid and her son Raju, Sanju and Rup Singh left to village Tihra. Rup Singh and Sanju returned from Tihra at about 2.00 P.M., and disclosed about having been found 3 the dead bodies of Munshi Ram and Ravi Kumar in the 'Khati'. She further stated in Ex.PA that about one year back, she has visited the house of Ram Saran because her daughter Kamla Devi had complained about maltreatment given by the accused persons and her mother-in-law and she asked about it but they told her to take her daughter with her because she has not been doing any work properly and then, she intimated Kamla Devi to send Munshi Ram to talk about it with them. On this Jaiwanti, mother-in-law of Kamla Devi had threatened to send the dead body of Munshi Ram to her in a 'Tokra' with the result deceased Munshi Ram neither visited their house nor was in any speaking terms with them. Thus, she expressed doubt, on the accused persons causing death of aforesaid persons. On statement of Smt. Malka Devi, Jogal Chand and Parkash Chand etc. accused persons alongwith Nand Lal (approver) were arrested. On 1.11.1993, Nand Lal aforesaid had made disclosure statement pointing out the house, where he had taken liquor with the accused and caused the death of both the deceased. Further, it is the case of the prosecution that accused Nandu, later turned as approver, moved an application under Section 306 Cr.P.C., before the Court of Chief Judicial Magistrate, Mandi on 31.1.1994 for making his statement. His statement Ex. PG was recorded. 3. After investigation, the accused persons were arrested and charged for the offence under Sections 302 and 201 read with Section 34 of the Indian Penal Code. In order to prove its case, the prosecution has examined as many as 14 4 prosecution witnesses. Whereas, the accused through their statement under Section 313 of Cr.P.C., have denied the prosecution case. 4. To prove their case, the prosecution has examined Smt. Malka devi (PW.1), Hari Chand (PW.2), Jagdish Chand (PW.3), Atma Ram (PW.4), Joghal Ram (PW.5), Joginder Singh (PW.6), Smt. Bhujan Devi wife of Shri Nandu Ram, approver (PW.7), Dr. Arun Kumar Tendulkar (PW.8), Nandu Ram, approver (PW.9), Bidhi Chand Patwari (PW.10), Chaman Lal Kaushik (PW.11), Prem Lal ASI (PW.12), Lekh Ram, Inspector (PW.13) and Sh. J.N. Barowalia, learned Additional District and Sessions Judge, Mandi, H.P. (PW.14) 5. There is no direct evidence in the prosecution case and only endeavour has been made by the prosecution to prove its case on the basis of statement of approver and other circumstances on record. 6. We have carefully gone through the contents of the prosecution witnesses and the impugned order passed by learned Sessions Judge. After analysis of the prosecution witnesses, it appears that deceased Munshi Ram and Ravi Kumar (child) were throttled to death but there is absolutely no eye witness of the alleged occurrence. The prosecution has placed reliance upon the testimony of Nandu Ram (PW.9) and Bhujan Devi wife of Shri Nandu Ram (PW.7). After going through the testimony of PW.7 Bhujan Devi and PW.9 Nandu Ram, we notice that testimony of both the prosecution witnesses, is not inspiring confidence. Both have blown hot and 5 cold with the same breath. Instead of supporting the prosecution case their testimony creates more doubt. Statement of Lekh Raj, Inspectors is a tainted version and it appears that he has deliberately suppressed the truth. Therefore, keeping in view the contradictions and inconsistencies in the testimonies of the prosecution witnesses and of approver, learned Sessions Judge arrived at the findings that the prosecution has failed to prove its case beyond reasonable doubt. 7. In our considered view, the prosecution has failed to bring home the guilt to the accused and the learned Sessions Judge has carefully analyzed the prosecution witnesses and has rightly arrived at a conclusion that the prosecution has failed to prove its case beyond reasonable doubts. In our considered view, there is no scope of interference in the findings given by learned Sessions Judge. In view of the aforesaid facts and circumstances, the present criminal appeal, being devoid of any merit, is dismissed. 8. The bail bonds furnished by the accused/respondent are hereby discharged. (R.B. Misra) Judge August 17, 2010 (V.K. Sharma) (Purohit) Judge