IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 556 of 2001 Date of Decision : June _15_ , 2011 State of Himachal Pradesh Appellant Versus Laiq Ram Respondent Coram: The Hon’ble Mr. Justice R. B. Misra, Judge The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 For the appellant : Mr. R. K. Sharma, Senior Addl. Advocate General for the appellant/State. For the respondent : Mr. Romesh Verma, Advocate, for the respondent. Justice 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 dated 13.6.2001 passed by the learned Sessions Judge, Kinnaur Session Division at Rampur Bushahr, H.P., in Sessions Trial No. 25 of 1999 acquitting the accused/respondent for the offences punishable under Section 302 read with Section 201 of the Indian Penal Code. Whether reports of Local Papers may be allowed to see the judgment? 2 2. The prosecution case is that Gurdeep was found lying in an injured condition in the house of Laiq Ram as had been noticed by Smt. Uma Devi, wife of Gurdeep (deceased) who on receiving information from Sh. Des Raj while searching for her husband Gurdeep (deceased) reached to the house of Laiq Ram, accused. Smt. Uma Devi remained close to Gurdeep observing her till Gurdeep succumbed to the injuries on his head from where blood was oozing. Despite her endeavour she could not get response from Gurdeep lying unconscious about the cause of injury. Smt. Uma Devi however agreed for cremation and had made a complaint after 10 – 15 days to the police that elder brother of Gurdeep (deceased) i.e. Laiq Ram (accused) had assaulted the deceased who consequently succumbed to the injuries. 3. After the completion of investigation accused was charged for the aforesaid offences punishable under Section 302 read with Section 201 of the Indian Penal Code. In order to prove its case prosecution examined as many as eighteen witnesses and the statement of the accused under Section 313 Cr. P.C. was recorded in which he denied the prosecution case. 4. PW-1 Smt. Uma Devi has stated that when her husband Gurdeep (deceased) left his house with Sh. Des Raj and did not return in the evening, however, PW-1 was informed by the daughter-in-law of Sh. Chunji Lal that her husband was lying in the passage. Thereupon PW-1 went in search of her husband and found him lying on the ground under the cover of a sheet in the house of 3 accused. After removing the cover she noticed the deceased lying in an injured condition, however, remained close to him till he breathed his last at 4.00 a.m. on 21.10.1998. 15 days after the death of her husband PW-1 was informed by the accused in the house of Sh. Des Raj in the presence of Sh. Jai Prakash that Laiq Ram had committed murder of Gurdeep and accused was prepared for any sentence awarded to him. Thereafter, PW-1 informed the police. PW-1 further stated that accused had given her document Ext. PW 1/A taken into possession vide recovery memo Ext. PW 1/B. PW-1 stated in cross examination that the matter was reported to the police after 15 days of the occurrence by executing written report scribed by a petition writer and police had visited her house after 10 – 15 days of her report. As stated by PW-1 report registered by PW-1 was not shown to her in future. As stated by PW-1 she was examined by police only once by A.S.I./Dy.S.P. and PW-1 had informed the police about the contents of Ext. PW 1/A. However confronted by her statement under Section 161 Cr.P.C. recorded on 6.1.1999 and 7.1.1999 such aspect was not mentioned. PW-1 further stated in cross examination that she produced Ext. PW 1/A before the police at her house which was taken into possession by the police. As stated by PW-1 she had produced one document only and document was produced in the presence of villagers namely Damyanti, Des Raj and others and the dead body was consigned to flames by the villagers with permission of PW-1. Contrary to the above version and assertion that PW-1 produced one 4 document Ext. PW 1/A to the police visiting the house of PW-1 10 – 15 days of making of the report to the police and the report was made to the police after 15 days of the occurrence. However, PW-1 has claimed to have produced that document before the police after two months. Contrary to the earlier version made in examination-in-chief PW-1 had subsequently stated in cross examination that accused had not given any document to PW-1 whereas, in cross examination PW-1 has very categorically stated that accused had given her document Ext. PW 1/A. Contrary to her statement made in examination-in-chief, PW-1 has stated in cross examination that accused had given Ext. PW 1/A to the police. PW-1 had very categorically stated in her testimony that one day prior to the occurrence her husband Gurdeep/deceased had taken liquor on that day. PW-1, however further stated in cross examination that she did not know that her husband had taken liquor on the day of the occurrence or not. Ext. PW 1/A said to be written by Laiq Ram on 24.11.1998 reveals that accused Laiq Ram had put signature on hand written note which he had written to Smt. Uma Gupta that half of the harvest of the orchard could be given to Uma Gupta and from the years 1999 to 2008 i.e. for ten years to come, the contribution of produce be given to her. Such amount shall be by way of assistance in favour of Uma Devi and her children. Testimony of PW- 1 reveals that she had given contradictory version that Ext. PW 1/A was passed on police by PW-1 and PW-1 also stated that accused had given Ext. PW 1/A to the police directly. Self contradictory 5 statements have been given that the document Ext. PW 1/A was given to the police after two months of the occurrence contrary to the assertion of PW-1 that the same was given to the police when police officials visited the house of PW-1 after 10 – 15 days of her report. Testimony of PW-1 is inconsistent in the sense that as per her claim she was examined by the police only once by A.S.I./Dy.S.P. and she had produced only one document to the police, whereas, contradicting statement was recorded on 6.1.1999 and 7.1.1999 by the police. 5. The testimony of PW-1 in our considered view is not inspiring confidence as her said testimony is not corroborated by any other prosecution witness. We see that PW-2 Narender Kumar a student of BA-1st year had while passing by the house of accused person on 19.10.1998 had noticed the accused beating his younger brother/Gurdeep/deceased with a stick. PW-2 further stated that he had left his house and accused had also gone and while the deceased was beaten 2 – 3 persons were there and at that time it was dark, however, he had seen in electric light that accused was beating his younger brother on 19.10.1998. PW-2 has, however, not informed anyone that he had seen accused beating his brother Gurdeep/deceased. Making an improvement in his version PW-2 has further stated that he had informed sister of the accused after 4 – 5 days of the death of Gurdeep that accused had committed murder of Gurdeep. PW-2 also stated that PW-1 Uma Devi had met PW-2 after about a month of the occurrence, however, PW-2 did not 6 inform PW-1 that he had seen accused person causing hurt to Gurdeep. Unusually PW-2 stated that he had informed members of his family about the occurrence 4 – 5 months back while making testimony on 28.5.2001, whereas, as deposed by PW-2 he was examined by the police 8 – 10 days of the death of Gurdeep when he informed the police that he had seen the accused person beating his brother, Gurdeep/deceased but the police had not recorded this fact. 6. On the analysis of the testimony of PW-2 we see that he had seen the beatings on 19.10.1998 and had not surprisingly informed to anyone even PW-1. Then how Gurdeep (deceased) was found in an injured condition in the house of accused on 20.10.1998 as has been noticed by PW-1? Whereas in view of the testimony of PW-2 when he noticed that the accused was beating Gurdeep on 19.10.1998 thereafter PW-2 left for his house and the accused had also gone away. In view of the inconsistent statement of PW-2 it appears that he had not seen the accused giving beatings to Gurdeep (deceased). 7. PW-3 Smt. Damyanti had noticed Gurdeep lying on the ground in the house of the accused person and further stated that accused had stated before her that he had committed a mistake and that he would provide maintenance to PW-1. 8. PW-4 Sh. Des Raj has also noticed Gurdeep lying on the ground in an injured condition and the accused had informed PW-4 that Gurdeep had suffered injury after a fall and on 21.10.1998 dead 7 body of Gurdeep was consigned to flames with the help of well wishers. PW-4 had stated in cross examination that he did not remember that any document was given to the police in his presence and the same was taken into possession as Ext. PW 1/B. Testimony of PW-4 also contradicts the version of PW-1 that she had given Ext. PW 1/A to the police. 9. PW-5, Sh. Rati Ram (Up-pradhan of village Narain in the year 1998-99) stated that on 20.10.1998 accused had visited his house in the evening and had informed that his younger brother Gurdeep under the influence of liquor had fallen down and received injury and accused had asked PW-5 to provide him vehicle in order to take Gurdeep for medical aid at Behli. In view of the testimony of PW-5, after the death of deceased accused had not confessed the charge of murder in presence of PW-5, PW-3, PW-1 and others. However, PW-5 had signed recovery of Ext. PW 1/A. Ext. PW 1/B is a document by which Ext. PW 1/A was given by Laiq Ram accused to Smt. Uma Devi after 20 days of the occurrence in presence of villagers and others. 10. PW-5, Sh. Rati Ram has stated in cross examination that when he visited the house of accused at that time dressing of the head injury of Gurdeep was done, however, at that time PW-5 did not notice any injury on the legs of Gurdeep. From testimony of PW-5, it appears that no confession was made by the accused that he was responsible for the death of Gurdeep and surprisingly dressing was done on the injury of Gurdeep and he was not taken 8 either to hospital or to any doctor. PW-5 has, however, stated very clearly in cross examination that the accused person had offered to maintain PW-1 and her children. Subsequently in cross examination PW-5 stated that accused has stated that he would look after PW-1 and her children and not maintain PW-1 and her children. 11. PW-6 Sh. Shyam Singh has stated that in his presence and in the presence of PW-3 and PW-4 accused had stated that whatever had happened had happened and henceforth he shall look after PW-1 and her children. However in view of the testimony of PW-6 accused had not informed PW-3, PW-4, PW-5 or PW-6 that he had caused hurt to Gurdeep or had thereby caused his death. 12. PW-7, ASI-Pat Ram on receipt of report Ext. PW 7/A which was taken into possession vide Ext. PW 7/B. In view of the testimony of PW-7, PW-2 had suo motu appeared before PW-7 and had recorded his statement. 13. PW-8, Smt. Uma Gupta wife of Sh. Des Raj had supplied a cot to the accused which was subsequently found smeared with blood which was washed and the ‘nawar’ of the cot was washed by PW-8. PW-8 further stated that in presence of police accused has stated that what had happened had happened. 14. PW-9, Sh. Raja Ram has taken into possession the ‘nawar’ Ext. P1 produced by Uma Gupta has, however, in cross examination denied that after 15 days of the death of Gurdeep the villagers had collected and convened a meeting where the accused had admitted the charge of murder of Gurdeep by the accused. 9 15. PW-10 Sh. Rajiv Deshta who was informed by the accused about the death of Gurdeep has stated that dressing was applied on the head of Gurdeep and PW-1 had taken the dead body on a cot to the house of Gurdeep on the next day and consigned the dead body to flames. PW-10 has, however, very categorically stated that the deceased had taken liquor 3 – 4 days prior to his death and deceased had taken liquor from 18.10.1998 onwards. 16. PW-11, Sh. Jawahar Singh has stated that in his presence PW-8, Uma Gupta had produced a piece of ‘nawar’ Ext. P1 before the police. PW-12, HC-Babu Ram in due discharge of his duty has endeavoured to support the prosecution case. 17. PW-13, Jai Prakash stated that on 5.11.1998 he accompanied PW-1 to Rampur and on 6.11.1998 at the instance of PW-1, petition writer had written the complaint regarding the occurrence and PW-1 had produced the complaint before the police and accused person had offered to maintain PW-1 and her children. The accused had not given anything in writing to PW-1. 18. PW-14 constable Partap Chand, PW-15 ASI- Roop Lal, PW-17 Prabhu Lal, Patwari and PW-18 HC-Dula Ram in due discharge of their official duty have endeavoured to support the prosecution case to the extent of the roles assigned to them. 19. PW-16, Sh. Charan Dass working as a Pharmacist in Government Ayurvedic Dispensary, Narain has stated that two women visited him on 20.10.1998 with a request to provide medical aid to the injured person and accordingly PW-16 went to the place 10 of accused and noticed that Gurdeep had suffered injury in the scalp and the injuries were bleeding and Gurdeep was lying on the ground. Five – seven persons were also present in the house of the accused and PW-16 had applied dresses to the injuries and had advised medical checkup of Gurdeep at Rampur however on the next day he came to know that Gurdeep had died. 20. From the analysis of the prosecution witnesses and material on record it appears that Gurdeep/victim/deceased was noticed lying in an injured condition in the house of the accused where several persons were available and even dressing of the injury on the head of Gurdeep was made and at the instance of PW-1 i.e. the wife of deceased her last rituals were done and at least for a fortnight no complaint was made and allegedly reference to Ext. PW 1/A presumption was derived that accused was willing to look after PW-1 and her children as such he could have been guilty of killing Gurdeep. Prosecution witnesses are inconsistent in their testimonies as accused had not accepted that he was responsible for murdering Gurdeep. Gurdeep was real brother of accused. No motive has been shown for killing his own brother. Apparent contradictions have been noticed in the testimonies of PW-1, PW-2 and other prosecution witnesses. On the analysis of the prosecution witnesses the learned Sessions Judge has rightly come to the conclusion that the prosecution has not been able to prove its case beyond reasonable doubt. In our considered view also the prosecution has failed to bring home the guilt of the 11 accused/respondent, as such, the appeal devoid of any merit is dismissed. The bail bonds of the accused/respondent are discharged. (Justice R. B. Misra), Judge. (Justice Sanjay Karol), Judge. June _15_, 2011 (PK)