IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No. 41 of 1997 Decided on June 18, 2010 ________________________________________ State of H.P. …Appellant Versus Kanta Devi 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? Yes/No For the Petitioner: Mr. Rajinder Dogra, Additional Advocate General, with Mr. Anil Jaswal, Advocate General. For the respondents : Mr. Anup Rattan, vice counsel. Justice R.B. Misra,J. 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 in reference to the judgment dated 13.6.1996 passed by the Learned Additional Sessions Judge, Mandi, H.P. in Sessions trial No. 10 of 1994 under Sections 302 and 201 read with Section 34 IPC and acquitting the alleged accused/respondents. 2. In order to adjudicate the present appeal, it is necessary to give the factual background of the case, that on 10.4.1993, at about 10.30 p.m. Chaman Lal was coming from Shanan Power House to his village. On the way, Shri 2 Khikhu Ram alongwith one lady and one Lekh Ram met him and told him that his father is sitting at the house of Mangat Ram in connection with the “Guntaryala” ceremony of his son. Chaman Lal (PW.1) was also informed by them that his father was enjoying dinner and wine in the house of Mangat Ram. On the next morning, PW.1 went to Padhar in the bus to play Cricket Match about 5.30 a.m. However, at about 8.30 a.m. he received a telephonic message from Shanan regarding accident of his Chacha Jee. Thereafter, he came back and when reached near Shanan, he found the dead body of his father was lying there. PW.1, after seeing the dead body of his father, became unconscious. PW.1 has also stated that the police was already there and the dead body was removed to the hospital. It was also gathered that Rama Ram, Khikhu Ram and one Dhogari gave beatings to his father and Puni Devi got his father murdered as there were injuries on the penis of his father. However, FIR No. 93/93 under Section 302 of IPC was registered and Kanta Devi was arrested and the case was committed to the Sessions Court for trial. Whereas, the remaining accused namely Mangat Ram, Chantaku Ram, Bhola Ram and Bhagat Ram were charged under Section 201 read with Section 34 of IPC. 3. In order to prove its case, the prosecution examined as many as nine prosecution witnesses. Whereas, 3 all the accused/respondents have denied the prosecution case. 4. PW.7 Dr. Jitender Kaul conducted the postmortem on the dead body of Kishan Singh and found that there are 6 cm long teeth bite marks at 2 mm distance apart on the glans penis, with ecyhmosis-bluish, 3 wounds one either side of urethra 2.7 cm apart, one wound bleeding, one wound over frenulum no bleeding from urethra. Mark of ligature on neck and dissection etc. and it was opined by PW.7 that cause of death is reflex vagal stimulation due to injury over glans causing cardiac arrest. 5. On analyzing the prosecution witnesses, we notice that on reaching the spot, where father of PW.1 was lying dead PW.1 noticed the presence of Ranjit Singh, Roshinder Pal, Devinder Kumar, Sohan Singh etc. PW.1 laid suspicion on Rama Ram and Khikhi Ram and one Dhogari and two brothers of Rama Ram. In cross-examination, PW.1 has stated that he disclosed to the police that Mangat Ram, Jhola Ram, Chantaku, Bhagat Ram and Rama Ram to have killed his father. PW.1 has further stated in his cross-examination, that Khikhu Ram told him on the previous night, when he met on the way, that all these five persons above, were enjoying dinner and wine with his father. Khikhu Ram further told him that his father had exchanged hot word with Rama Ram. Smt. Prabhi Devi mother Kanta Devi had been residing with Mangat Ram who is her son-in-law. 4 6. In cross-examination, PW.1 has also stated that he made a statement to the police that he was suspicion on Puni Devi for commission of the murder of his father. He has further stated that in his earlier statement he did not state that his father had been visiting Smt. Puni Devi in village Siyri and 5-6 years back some people had objected to his father going there and the relatives of Puni Devi had given beatings to his father for that reason. PW.1 had also stated in cross-examination that the accused belonged to “Chamar” community and while PW.1 and the deceased belonged to “Rajput” community. PW.1 has further stated in the cross- examination that he was told by one Khikhu Ram that his father was given beatings by Rama Ram and that he got fainted and was lying in the quarter. 7. PW.2 Rushinder Pal by supporting the case of the prosecution has stated that while he was coming to Bazar Jogindernagar, and when he reached about 1-1 ½ furlang from his house, he found dead body of Kishan Singh was lying. On the road side one torch and one stick were also lying near the dead body. PW.2 even touched the dead body of Kishan Singh to ascertain whether he is alive and is under the influence of liquor, but ultimately he found that he was dead. After returning to his house, he told Ranjit Singh, brother of the deceased about the dead body and also sent his son to the house of the deceased to inform them about the death of Kishan Singh. Then Ranjit Singh, Sohan Singh, 5 Devinder and other people came to the spot. Devinder went to the Police Station and then police came to the spot. When police removed the cloth from the dead body PW.2 and others found that there were some injuries on his penis. PW.2 further stated in the cross-examination that other people were not associated by the police officials. 8. PW.3 Sh. Ashok Kumar had stated that he was called by the police on 17.4.1993 at Shanan, where other witness Devinder Kumar was there. PW.3 went to the quarter of Mangat Ram, Kanta Devi wife of Mangat Ram was there, she told to the police that on the night of “Guntarayala” in their house, Kishan Singh deceased had came there, in the next room the deceased opened his pant and tried to commit rape on her and then she gave tooth bite on his penis. Statement of Kanta Devi was recorded and then it was signed by her, PW.3 and by PW.4 Devinder Kumar as Ex. PW.3/A. 9. In the cross-examination, PW.3 has stated that accused Kanta Devi made her disclosure statement in his presence. He has further stated that Mangat Ram and his mother-in-law were also there when disclosure statement was made by accused Kanta Devi. Pradhan Harish Kumar and Up-Pradhan Birbal were not associated in this case. 11. PW.4 Devinder Kumar has stated that on 11.4.1993, at about 7.30 a.m., Ranjit Singh told him that the dead body of Kishan Singh is lying on the road side near 6 “Harnala Colony” and asked him to lodge the report with the police and accordingly PW.4 made a report to the police. On the spot PW.4 observed the dead body of Kishan Singh with an injury on his penis. PW.4 further stated that when he was passing to the Shanan Colony, police was there and he himself went there at that time, Ashok Kumar was there and the police was in the quarter of Mangat Ram. PW.4 was made to sit out side for half an hour and then he called inside the room, then accused Kanta Devi was asked to make statement and then she made the disclosure statement, stating that deceased Kishan Singh came to her room on 10th April, 1993 on the night time and tried to commit rape on her and when he opened his pant, she gave tooth bite on his penis. Statement is Ext. PW.3/A which was signed by PW.4 as well as PW.3 Ashok Kumar. 12. In cross-examination, PW.4 has stated that his statement was not recorded by the police when he came to inform them about the dead body of Kishan Singh. However, according to him he stayed in the Police Station for about half an hour and 5-6 police personnel accompanied him to the spot. When PW.4 reached the spot about 100 people were there. However, Ashok Kumar PW.3 was already there when he reached in the house of Mangat Ram. He was going inside the room coming out side off and on. 13. PW.5 Khikhu Ram resident of "Harnala Colony” where Mangat Ram is residing, has stated that He had gone 7 to the house of Mangat Ram to attend “Guntaryala” , where Bhola, Bhagat and Chantaku were already there. He has further stated that Narain Dass and his wife, Dayal Ram and his wife, Ram Singh and Saran Dass were also there. Mangat Ram serving food and wine to the guests. At about 9.30 p.m. Kishan Singh also came there. Mangat Ram asked deceased Kishan Singh to come inside the rood. Kishan Singh was already heavily drunken. Mangat Ram offered him a glass of wine which Kishan Singh accepted but he did not take a sip of it. PW.5 came back at about 9.45 p.m. but Kishan Singh remained sitting there. Bhola, Chantaku and Bhagat were also there. On the way, Chaman Lal son of Kishan Singh met him and enquired from him “Mama to Kahan se Aaya” PW.5 told him that he was coming from the house of Mangat Ram after taking meal and his father is also sitting there. 14. In the cross-examination, PW.5 has stated that all the persons present in the house of Mangat Ram Harijan excepting Kishan Singh. When he left the house of Mangat Ram, Kishan Singh, Mangat Ram, Chantaku, Bhola and Bhagat remained behind all others had left. However, PW.5 did not say that how many ladies were present there. PW.5 however, stated that all the ladies were sitting inside the room and all were busy in their “Manoranjan”. PW.5 in his cross-examination had further stated that he does not know 8 that whether there was a general complaint that the deceased was visiting the house of Puni Devi. 15. PW.6 Gian Singh, posted as MHC Police Station, Jogindernagar, since January, 1993, on some extent has supported the case of the prosecution. 16. In his official capacity PW.8 S.I. Yogesh Guleria has supported the case of the prosecution. He had stated that he found the dead body of Kishan Singh lying on the road side. After inspecting the dead body inquest report Ex. PW.8/A was prepared and at that time it was noticed that penis of the deceased was bleeding and he had some bruises on the back side of his thigh. Stick Ex. P2, Torch Ex.P3 were also found near the dead body. Many people gathered on the spot including Roshinder Pal, Ranjit, Devinder, Chaman lal son of deceased etc. Usual formalities of the investigation during the investigation have been done by PW.8. On 17.4.1993, when accused Kanta Devi was interrogated in presence of Devinder Kumar and Ashok Kumar, she made a disclosure statement to the effect that deceased entered her room and loosened the string of her Salwar and after opening his pant he tried to do the mischief with her and then she gave tooth bite on the penis of the deceased and thereafter Mangat Ram and other accused removed him out side the room. Statement of accused Ex. PW.3/A which was signed by PWs Devinder Kumar, Ashok Kumar and thumb mark of accused Kanta Devi was also obtained. 9 17. PW.9 ASI Shamsher Singh had recorded the supplementary statement of Chaman Lal son of deceased. He had also recorded the statement of Khikhu Ram in discharge of his usual practice. 18. On scrutiny of prosecution witnesses and material on record, we notice that Devinder Kumar reaching on the spot noticed injuries on the person of deceased and was made to sit out side of the room of Mangat Ram for half an hour, and thereafter he was called inside the room then Kanta Devi accused was asked to make disclosure statement. Such version of PW.4 about the disclosure statement of accused Kanta Devi was in contradiction to the disclosure statement indicated by accused Kanta Devi. In view of the testimony of PW.8 ASI Yogesh Guleria, he has stated that in presence of Devinder Singh and Ashok Kumar, accused Kanta Devi made a disclosure statement. The mystery of removing the dead body of deceased Kishan Singh from the place of occurrence to the road side is not proved by the prosecution. Smt. Puni Devi has not been examined, on whom complainant Chaman lal showed suspicion in the First Information Report. There is no evidence nor any circumstantial evidence to connect the accused with the commission of murder of Kishan Singh and thereafter removing the dead body to the place, where it was found. 19. On analyzing the prosecution witnesses and material on record, it is also evident that Kishan Singh was 10 lastly seen in the house of accused Kanta Devi, where large number of ladies and gents were present, then under what circumstance Kanta Devi had injured by bite to the deceased is not properly explained. 20. On further scrutiny of prosecution witnesses and material on record, learned Additional Sessions Judge has rightly arrived at the findings that the prosecution had failed to prove its case beyond all reasonable doubts and to bring home the guilt to the main accused Kanta Devi as well as to prove the offence under Section 201 read with section 34 of IPC against other accused. In our considered view, there is no scope of interference in the findings given by learned Additional Sessions Judge. In view of the aforesaid facts and circumstances, the present criminal appeal being devoid of any merit is dismissed. (Justice R.B. Misra), Judge. June 18, 2010 (Justice V.K. Sharma) (Purohit) Judge