IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 503 of 1999 Date of decision: 25.08.2010 ____________________________________________________________ The State of H.P. .....Appellant. Versus Pashmu Devi .....Respondent. Coram The Hon'ble Mr. Justice R.B. Misra,J. The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? ____________________________________________________________ For the appellant: Mr. Rajinder Dogra, Additional Advocate General with Mr. Anil Jaswal, Deputy Advocate General. For the respondent: Mr. Y.P.S. Dhaulta, Advocate. R.B. Misra, J (Oral). The present criminal appeal has come up for consideration after leave to appeal under Section 378(3) of the Code of Criminal Procedure has been granted in reference to the impugned judgment and order dated 30.06.1999, passed by the learned Additional Sessions Judge, Shimla, District Shimla, in Sessions Trial No. 37-S/7 of 1995, acquitting the alleged accused under Sections 302 of the Indian Penal Code in reference to FIR No. 2 of 1994. 2. Prosecution case in brief is that complainant, Kundan Lal, married Pashmu and lived with her for about four years. No 1 Whether reporters of Local Papers may be allowed to see the judgment? ...2... issue was born from such wedlock, as such, complainant, Kundan Lal (PW-1) married Devan Devi in the year 1975, as per Hindu rites. Out of such wedlock, two children, namely, Narinder (deceased) and one daughter Reena Devi were born. Narinder (deceased) was about 13 years of age and was student of 3rd standard. On 21.09.1993, a messenger, namely, Tara Chand, came to Kundan Lal (complainant) alongwith a letter and Kundan Lal came to know about the death of his son Narinder. He immediately went to his house, where he found the dead body of his son lying in the house. Thereafter, Narinder (deceased) was cremated. Nephew of complainant, Miyan Ram, working in a hotel at Shimla came to the village after 15-20 days of the death of Narinder and the complainant, as well as, his wife offered to adopt said Miyan Ram as their son. As such, Miyan Ram started living with the complainant alongwith his wife. It appears that accused Pashmu Devi was not happy with the marriage of Devan Devi with Kundan Lal and allegedly had given poison to Narinder (deceased). On investigation, the case was registered on 03.01.1994, under Section 302 IPC, vide FIR No. 2 of 1994, Ex. PW-1/C. After completion of the investigation, accused was charged for the offence under Section 302 of the Indian Penal Code and the case was committed to Sessions Court. 3. In order to prove its case, prosecution examined as many as sixteen witnesses, whereas, accused through her statement under Section 313 Cr.P.C. denied the prosecution case. 4. PW-1 Kundan Lal (complainant) has stated that on ...3... inquiry about the cause of death of Narinder (deceased) from his wife, he came to know that something was given in food to the deceased and the food was cooked in one utensil. The left out food was given to his cattles and on eating the same, white liquid ('jhag') started coming out from the mouth of the cattles. PW-1 consulted the Veterinary doctor, however, such thing was not examined by the Veterinary doctor. PW-1 also stated in cross- examination that there are 70-80 houses in the village and PW-1 was residing separately alongwith his family. He has also stated that he did not apprise the police that how he came to know about the ailment of his son. PW-1 has further deposed that he has reason to believe that it is the accused Pashmu, who had administered the poison in the food of his son, as the left out food in the 'thali' (plate) was given by me to three cattles viz. oxen, a cow and a calf and liquid started coming out from the mouth of such cattles after three hours from eating the left out food. PW-1 has also stated that accused-respondent Pashmu Devi was divorced by him about 20 years ago, from the birth of his deceased son Narinder and accused-respondent Pashmu had been residing with her sons Maya Ram and Sita Ram, as such, accused- respondent Pashmu was not concerned with the family of Kundan Lal after separation. 5. PW-2 Uttam Sain, the then President Gram Panchayat, has stated that he was informed by PW-1 through application, Ex. PW-1/A, and he forwarded the same to SDM, Rohru for necessary action, keeping in view the belief of PW-1 that accused-respondent ...4... Pashmu had hand in the death of the deceased. 6. PW-3 Ram Charan Dass, was called by PW-1 Kundan Lal alongwith Sham Lal and told that Savitri Devi had informed him that it is the accused Pashmu, who administered poison to the deceased. On inquiry alongwith Sham Lal, PW-3 came to know that the accused-respondent admitted that she had given poison by mistake to the deceased, Narinder, instead of giving the same to Smt. Devan Devi. 7. PW-4 Narma Devi, PW-5 Ajji and PW-7 Jeet Singh are not very material witnesses for the prosecution case. PW-7 HC Bula Ram, PW-8 Maheshwari Singh and PW-9 Kalgi Ram in due discharge of their official duties have endeavoured to support the prosecution case to the extent role assigned to them. 8. PW-10 Bhajan Dass is the witness associated during the recovery of bones from the cremation ground. PW-11 Savitri Devi has not supported the prosecution case. PW-12 Lokinder Singh, PW-13 S.I. Anant Ram, PW-14 Udho Mani, PW-15 Hem Raj and PW-16 Rikpa Gaiachoo had supported the prosecution case to the extent it was expected from them. 9. On analysis of the prosecution case and the material on record, we notice that Tara Chand, who was deputed to inform the complainant at Rohru, had gone there with a letter addressed to the complainant, indicating that his son Narinder (deceased) was ill, however, said letter has not seen the light of the day, as it is neither produced before the police, nor brought on record. Complainant Kundan Lal (PW-1) has stated that he had lost such ...5... letter, because of being frustrated on the death of his son. Said Tara Chand has also not been examined to fill the lacunae in the prosecution case, which makes the prosecution story highly improbable. There is possibility that there may be some other cause of death of the deceased Narinder mentioned in the letter or known to said Tara Chand cannot be ruled out. 10. Savitri Devi, PW-11, on inquiry by the complainant has revealed that mother-in-law of deceased disclosed to her that she administered poison to the deceased. However, PW-11 has not supported the prosecution case and has further stated that accused-respondent Pashmu had not disclosed that she administered poison to the deceased. No doubt PW-11 admitted that it was the talk of the whole village that the deceased was killed by accused by administering poison to him, however, she qualified such version stating that no one was talking at this topic openly. There is not an iota of evidence to suggest that it is the accused- respondent Pashmu, who administered poison to the deceased, even if it is believed to be so, in that event, she would have not confessed her guilt. In case, it was so, it is not understandable as to why information thereto not find mention in the application, Ex. PW-1/A, submitted by the complainant to the President Gram Panchayat. The perusal of this application reveals that the complainant has suspected the hand of some one in the death of his son, however, again he did not mention the name of the accused in such application. 11. From the testimony of PW-1 that the accused had ...6... been residing separately from the complainant and his family, in that event also how she could have mixed the poison viz. 'Mora' (poisonous grass) in the food of the deceased or Devan Dei. The prosecution story, as regards to the accused having obtained such poisonous substance from PW-4 Birma Devi is also not proved, because said witness has stated that she never gave 'Mora' to the accused. PW-9 has also not supported the prosecution case in this behalf and has also denied the 'Mora' having been given to the accused by PW-4 Birma Devi. The recovery of 'Mora' at the instance of the accused from her house, appears to be highly improbable. Such recovery was stated to be affected in presence of PW-5 Ajji and PW-12 Lokinder Singh. The statement of PW-5 cannot be believed as the statement of PW-5 is falsified from the statement of PW-12 Lokinder Singh, because he has categorically stated that it was the accused and the police entered inside the house and he was made to stand outside being schedule caste and not allowed to enter in the house of the accused, who is Rajpoot. Meaning thereby that both the witnesses PW-5 and PW-12 remained outside the house and did not witness the recovery of the poisonous substance from the house of the accused. The prosecution case, so as to the white liquid started coming out from the mouth of the cattles of the complainant on eating the left out food, has also no legs to stand, because nothing was proved to show that the same food was the part of that food which was administered to deceased Narinder and if such suspicion was carrying weight, the Veterinary doctor could have been called to ...7... examine the cattles. As such, the version of PW-1 that when he consulted the Veterinary doctor, he was advised to come again and PW-1 thereafter failed to take the help of Veterinary doctor, is also without any basis. The incident of poisoning took place on 20.09.1993, whereas, the FIR was lodged after a long elapse of time, that is, on 03.01.994 and as such, long delay of three months has not been properly explained. 12. On appraisal of the prosecution witnesses and the material on record, we find that the witnesses are not inspiring confidence. As regards the remains collected from the cremation ground, on analysis thereof nothing could be said to be pertaining to the deceased, as opined by the Chemical Examiner in his report, Ex. PW-16/C. 13. There is thus no satisfactory and convincing evidence available on record suggesting the involvement of the accused in the commission of the alleged offence. In our considered view, the prosecution has failed to bring home the guilt against the accused- respondent beyond reasonable doubt and we do not find any scope of interference in the judgment of the trial court and appeal being devoid of merit is dismissed. (R.B. Misra) Judge (V.K. Sharma) Judge 25th August, 2010 (virender)