IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr. Appeal No. 421 of 1996 Reserved on: March 30, 2010 Date of Decision : May 7, 2010 State of H.P. …Appellant. Versus: Tilak Raj & Anr. …Respondents. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant: Mr. Vivek Thakur, Addl. A.G. For the respondents : Mr. Lovnesh Kanwar, Advocate Sanjay Karol, J. The respondents are alleged to have murdered Sh. Kaur Ram sometime on 6.6.1994. The motive of murder being the illicit relationship between Sita Devi, accused No.2 (A-2), wife of the deceased and Tilak Raj, accused No.1 (A-1). They were charged for having committed offences punishable under Sections 120-B, 201 & 302 read with Section 109 IPC. In Sessions Case No. 6 of 1995 titled as State vs. Tilak Raj & Anr., 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 they stand acquitted by the Court of Sessions Judge, Chamba Division, Chamba, H.P., in terms of judgment dated 9.10.1995. 2. It is the case of the prosecution that A-1 was having illicit relationship with A-2, which was in the knowledge of the deceased Sh. Kaur Ram. On this issue deceased and A-2 used to quarrel quite often. The deceased used to work as a Labourer with Sh. Karnail Singh (PW-3). On 6.6.1994 when they returned from work, the deceased informed PW-3 that he was going to the Jungle (forest) to search for his cattle. Almost at the same time, both the accused persons also left for the Jungle to search the cattle. In the evening, the accused persons returned back together. On her return A-2 informed her daughter Ms. Babli (PW-9) that the deceased might have gone somewhere else. After about 2-3 days, A-2 informed her brother that the deceased was missing since 6.6.1994. Villagers S/Sh. Chhotu Ram (PW-2), Ching Singh (PW-6), Charan Singh and Paras Ram etc. went to search for the deceased and found his dead body lying in the Nallah at a place called “Kada” Jungle. The neck of the deceased was swollen and had bruise marks over it. When the dead body was brought home, A-2 stated that she did not suspect or blame any person for the death of the deceased and accordingly the body was put to flames in accordance with the customary rites. Even thereafter, A-1 continued to visit the house of A-2. She allegedly made a grievance that though A-1 3 had murdered her husband, yet he was not providing any maintenance to her. 3. On 26.10.1994, A-1 came drunk into the Court yard of the house of A-2 and proclaimed that even though he had killed the deceased yet the villagers could not do anything about it. There the accused was over-powered by S/Sh. Chhotu Ram (PW-2), Karnail Singh (PW-3), Paras Ram and Tilak Raj etc. Throughout the night, he was kept in the house of A-2 and in the morning was taken to the Pradhan Sh. Jaikaran (PW-1). An application (Ext.PA) written by the villagers was presented to him and the Panchayat was summoned. Witnesses S/Sh. Dhani Ram and Ching Singh (PW-6) participated in the Panchayat meeting. In their presence A-1 confessed to have murdered the deceased at the instance of A-2. The confessional statement (Ext.PB), reduced into writing was also signed by A-1. On the basis of the application (Ext.PA), F.I.R. (Ext.PG) dated 28.10.1994, under Sections 120-B, 201, 302/34 IPC was registered with the Police Station, Chuwadi. The police investigated the matter and completed the necessary formalities. 4. With the completion of the investigation, the challan was presented in the Court for trial. As already noticed earlier, both the accused persons were charged for having committed offences punishable under Sections 120-B, 201 & 302 read with Section 109 IPC., to which they did not plead guilty and claimed trial. In all, the prosecution examined 10 witnesses. Statement 4 of the accused under Section 313 Cr.PC was recorded. The defence is that of denial. The Court below acquitted the accused persons for the reason that the confessional statement (Ext.PB) made by A-1 could not be used against A-2. In any event it was not a voluntary statement. There were material contradictions in the statements of the witnesses rendering their version to be not true and as such prosecution could not prove its case. 5. There is no witness to the occurrence of the incident. Both the accused persons were known to each other since long and A-1 had been visiting the house of A-2 even during the lifetime of the deceased. These facts are not in dispute. The same is also evident from the testimonies of PW-1, PW-2, PW-3, PW-6 & PW-9. It is also not in dispute that during his life time deceased did not make any complaint, oral or written, to any persons about the conduct of his wife. 6. It is also a proven fact that A-1 has his own immovable properties in different villages. Admittedly, A-1 also actively participated in the ceremonies performed at the time of the cremation of the deceased. Even close relatives of the family were also present there. Undoubtedly, it is not the case of the prosecution that any of the villagers, relatives or members of the family ever suspected the accused persons of having committed the alleged offence or talked about any illicit relationship between them. Neighbour Sh. Chhotu Ram (PW-2) also admits that he had never talked to anyone on this issue. However, the 5 solitary statement of PW-9 (aged 15 years), daughter of the deceased and A-2, is to the effect that her parents used to quarrel on the issue of illicit relationship between the accused persons. However, she also admits that except for the police, she did not disclose this fact to anyone. It is also an undisputed fact that except for PW-9 none has deposed that the deceased had informed them about the illicit relationship or that they had witnessed the deceased quarrelling with A-2. 7. We have closely scrutinized the statement of PW-9 and are of the view that keeping in view the contradictions and the improvements made therein, in the absence of any other material it would not be safe to rely upon the same and hold the accused guilty of the charged offence. 8. PW-9 undoubtedly is the daughter of A-2. According to her, whenever A-1 used to visit their house, her father (deceased) not only objected to the same but even asked him to stop it. When the dead body of the deceased was brought home she noticed that the neck was swollen and had bruise marks. Now this version of her stands materially contradicted by PW-3 who had found the dead body and brought it home. He is certain that there were no marks on the dead body. PW-9 admits that there even her immediate neighbours did not make any inquiries about the visit of A-1 to their house and that her father quarrelled with her mother was also not disclosed by her to anyone. She does not remember the month, the time and the 6 date when the quarrel took place. Now such an important fact and event is not likely to be forgotten even by a child of an intelligible age. She also does not narrate the exact conversation which took place between her parents. She admits that prior to her examination in the Court, she had been sitting with the Thanedar (Policeman) “outside the Court premises”. Though she states not to have spoken with him but however this version of her does not appear to be true. With whom she had come to the Court is not clear. She does not state so. Then why was she sitting with him. 9. It did occur to our mind as to why a daughter would falsely depose against her mother. The reason is not far to seek. She is obviously under the influence of the police. It could also be out of fear of police and villagers. The police had recorded her statement under Section 161 Cr.PC (Ext.DB) with which she was confronted. She admits not to have made part of the same. For better appreciation, relevant portion of her deposition, as translated by the trial Court is reproduced as under:- “My statement was recorded by the police. I had not stated to the police that there were bluish mark on the neck of my deceased father and that his neck was swollen. I had stated to the police that on the day my father had disappeared both the accused had returned home/our house after they had gone in search of cattle. (Witness confronted with portion ‘A’ to ‘A’ of statement Ext.DB, wherein it is stated that only accused Sito had come back home after searching the cattle. I had not stated to the police that my mother had told the 7 accused Tilko on the roof that she had murdered her husband and was not providing any maintenance to them. (Statement Ext.DB goes to show that the witness had stated this fact to the police and only it was not mentioned that this talk had taken place between the two accused on the roof of the house of this witness and instead it is mentioned that the talk had taken place near the hearth in that house). I had not stated to the police about this talk when my statement Ext.DB was got recorded by the police. I had not stated to the police names of the aforesaid persons namely Bhonku etc. who had over-powered accused Tilko. It is correct that today when I had come to the Court and till I was called to the Court room, I was sitting with the Thanedar outside the Court. It is incorrect that during this period, the said Thanedar had been tutoring me concerning the statement to be made in the Court. I had not talk with the Thanedar outside the Court.” 10. The police had put words in her mouth while recording her statement. The possibility of police tutoring her cannot be ruled out. She admits that when A-1 was taken to the Pradhan (PW-1) his hands were tied. It has come on record that he had been beaten up by the villagers. 11. Further according to her she had heard her mother telling A-1 that though he had murdered her husband he was not providing any maintenance to her. Importantly, she does not state that she had heard her mother telling A-1 that the deceased had been killed at her instance. That apart even this version of her does not inspire confidence. According to her the 8 alleged conversation took place in the presence of her brother on the roof of the house. Now the brother has not been examined by the prosecution. She does not remember any other conversation which had taken place between them. She remember only that part which the police wanted her to state. She does not remember for how long they remained on the roof. She claims to have revealed this fact only to the police and none else though she had ample opportunity to disclose it to her immediate neighbours and her relatives. It is not the case of the prosecution that she was under any threat or intimidation. Thus her statement does not inspire much confidence and it would not be safe to rely upon the same to hold the accused guilty of the charged offence. The time gap between the date of the alleged crime and the date when the accused confessed his crime is 4 months. Now this period was enough for any one to suspect or report the matter to any one. 12. We feel that there are serious and material contradictions in the statements of the witnesses as also the prosecution story. This has made us believe the prosecution case not only to be doubtful but false. PW-2 & PW-3 had gone to the forest and found the body of the deceased. Both have contradicted each other. According to PW-2, he, Sh. Karnail Singh (PW-3) and Sh. Paras Ram overpowered A-1 at the time when he was drunk and using abusive language. Sh. Paras Ram has not been examined by the prosecution and PW-3 9 admits not to be present there at that time. He only heard the incident from other persons. The contradiction is material as A-1 is alleged to have confessed his crime before them. 13. PW-2 further states that during the night A-1 was kept in the house of the deceased and it was only in the morning that he was taken to PW-1, to whom a written application (Ext.PA) was handed over. A-1 was then questioned by PW-1. On the asking of PW-1, he reduced into writing the confessional statement (Ext.PB) made by A-1. In cross-examination he admits to have written Ext.PA & Ext.PB. To a naked eye the writing does not appear to be written by the same person. He tried to explain the difference in the hand writing by stating that Ext.PB was written in a hurried manner. This explanation appears to be incorrect and an after thought. Now what was the urgency to record the statement in a hurried manner? Why was A-1 made to stay in the house of A-2 at night? It is not the case of the prosecution that any of the villagers had guarded him at night. What was the need to give a written application to the Pradhan? Why was A-2 not confronted with the same by the Panchayat? These facts are not clear from the record. Further he admits that on 26th & 27th October,1994 A-1 was not tied with the rope. Now this version stands materially contradicted by PW- 6 & PW-9. His version that while admitting his guilt A-1 had wept before PW-1 stands contradicted by PW-1, PW-2 & PW-5, according to whom it was not so. Though PW-9 only states that 10 the villagers had “threatened” the accused. The fact that A-1 had been beaten up by the villagers is admitted by PW-1. He admits to have noticed some injuries on the body of A-1 at the time when he was brought up by the villagers. However, the Investigating Officer, Sh.Jit Singh (PW-10) totally denies this fact. PW-1 admits that the accused had informed him that he does not remember having hurled abuses and proclaimed having killed the deceased as he was in an intoxicated position. In this background the statement cannot be said to be made voluntarily. The place and the manner in which Ext.PB was reduced into writing, as is evident from the record, falsifies the prosecution version. According to PW-1, all proceedings of interrogation of the accused were carried out at a place called “POONGA”. The confessional statement (Ext.PB) was also reduced into writing there. He is categorical that the same was not done at his shop. Now this version of his stands materially contradicted by PW-2, according to whom the same was done in the shop of PW-1. PW-6 has come out with yet another version as according to him the entire proceedings took place at the Panchayat Ghar. 14. On 27.10.1994 importantly at about 1.30 p.m., PW- 1 had asked PW-2 to take A-1 to the police. It has come on record that the Police Station was just at a distance of 10 kms. and yet the matter was reported to the police only on 28.10.1994 and that too at about 1.15 p.m.. Now what 11 transpired for 24 hours has not been disclosed. Why the police was informed late has also not been disclosed? Why the accused No.1 was kept in the house of accused No.2 during the night has also not been explained? The Investigating Officer, to our mind, has not come out with the truth. We have already noticed the statement of PW-1 in this regard. 15. The accused has had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down in Mohammed Ankoos and others vs. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the persons has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. ( Deepak Gupta ) Judge. ( Sanjay Karol ), Judge. May 7, 2010. (rana)