IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 79 of 1995 Reserved on: 6.3.2009 Date of decision: 12.03.2009 State of H.P. ... Appellant Versus Jaswant Singh alias Billa … Respondent Coram : The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellant: Mr. R.M. Bisht and Mr. Rajesh Mandhotra, Deputy Advocate Generals. For the respondents: Mr. Y. Paul, Advocate. Per V.K. Ahuja , J.: This is an appeal filed by the State of H.P. under Section 378 Cr.P.C. against the judgment of the Court of Ld. Sessions Judge, Una, dated 2.3.1994, vide which the respondent was acquitted of the charge framed against him under Section 302 I.P.C. The prosecution story in brief is that on 8.10.1992 PW-1 Bachittar Singh was served dinner by his wife Resham Kaur and after serving dinner, she went out into the fields to answer the call of nature. After sometime at about 8.45 P.M., one Kulwinder Singh came there and told PW-1 Bachittar Singh that his wife had been killed by some body with sharp edged weapon and that she is lying in the field. PW-1 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 Bachittar Singh went there, found his wife lying on the ground in an unconscious state with sharp edge injuries on her person. She was picked up and taken to hospital at Nangal. She died after 1½ hours of her admission. A report had been lodged with the police by Ram Asra and thereafter statement of PW-1 Bachittar Singh Ext. PA was recorded in which he expressed his doubt firstly on Dilawar Singh and thereafter, expressed his suspicion upon the accused. After investigation, the challan was filed before the learned Judicial Magistrate, who committed the case to the learned Sessions Judge, who tried the respondent, leading to his acquittal. We have heard the learned counsel for the parties and have been taken through the evidence produced by the prosecution. The submissions made by the learned Deputy Advocate General were that there was statement of PW-2, an eye witness proves the guilt of the accused and as such, the findings to the contrary recorded by the learned trial Court acquitting the respondent are liable to be set aside. The learned counsel for the respondent had supported the impugned judgment for the reasons recorded therein. On appraisal of the record of the case, it is clear that the prosecution had examined 16 witnesses to substantiate their case. Out of these witnesses, statement of PW-2 Krishna Devi an alleged eye witness can be said to be material since there is no other circumstantial evidence apart from the direct evidence in the form of statement of PW-2 Krishna Devi. We have to therefore examine the statement of PW-2 whether it is such upon which implicit reliance can be placed to hold that the prosecution case has been proved beyond any reasonable doubt. 3 PW-2 Krishna Devi has stated that on 8.10.1992, at about 8.45 P.M., she was going to the house of one Jagat Ram. When she reached near a Peepal tree near the Chowk of Bathal factory, she heard a shriek from the side of orchard of Ram Asra, “Bebe ji Mainu Mar Ditta”. She saw the accused running away from the place of shriek with a Drat in his hand. He was wearing a shirt, which appeared to be white and underwear (Kachha) at that time. She stated that he was carrying Drat Ext. P-6 in his hand, but she cannot recognize the Drat since it was night time. However, she identfied the shirt Ext. P-7 which accused was wearing at that time. She further stated that Kulwinder Singh and some members of his family came running to the spot and they were shouting that Resham Kaur had been killed. She shouted that Billa had run away from the spot. She further stated that she fell unconscious. She did not tell about all these facts to anyone out of fear and told this story for the first time when the police was recording the statement of the ladies. She volunteered to state that it was a moon lit night. A perusal of cross-examination of this witness shows that she was the mediator at the time of the marriage of Resham Kaur with PW-1 Bachittar Singh. It looks surprising that she had seen the accused running away from the spot and she came back to her house, where her husband, brother of her husband alongwith his wife and her mother-in- law were also living in that house. She never told her husband or other members of the family present in the house that she had seen the respondent running away from the spot where the body of Resham Kaur was lying and that he was having a Drat in his hand. She had seen the occurrence on 8.10.1992 and her statement was recorded by the police on 4 12.10.1992, as is clear from the testimony of PW-16 Karnail Singh, ASI as well as of the copy of statement Ext. PW2/A. It is also in his evidence that the accused has been arrested on 11.10.1992 and once he had already been arrested, there was no occasion for this witness to be under the fear of the accused and not to have volunteered to make statement before the police or informed his family members or family members of the deceased having seen the respondent running from the place of occurrence. Apart from the above, in case her statement is believed that she was first to reach there and after sometime Kulwinder and other reached the spot, she must have talked with those persons since she had seen the respondent running from the spot. In case her statement is true that she had become unconscious and was at some distance from the dead body, naturally Kulwinder Singh who informed the husband of the deceased or husband of the deceased PW-1 Bachittar Singh must have noticed this witness lying at the spot in an unconscious state and they would have learnt from her after some time when she regained consciousness as to what she had seen. Moreover, she has clearly stated that she raised an alarm that Billa had run away from the spot and this fact could have been heard by the husband of the deceased and other witnesses also, but they have no where stated that they heard anything at the spot or noticed PW-2 Krishna Devi lying at the spot after the occurrence. There is no reason to believe her that she never told these facts for four days to either the members of the family of the deceased or the police when she had been knowing the deceased since her marriage was settled by her. There is no occasion to hold that 5 she was present at the spot and had seen the respondent running from the spot. It is difficult to believe that in those days when it was sufficiently dark being late in the evening, she could identify the respondent from his back only and even could identify the shirt he was wearing at the relevant time. Her non-disclosure to any person for all these four days makes her statement doubtful and cannot be relied upon. The statement of other witnesses are not material. The facts of the case clearly show that firstly the husband of the deceased, namely, PW-1 Bachittar Singh expressed his doubt upon one Dilawar Singh and gave a reason also of a quarrel having taken place earlier with Dilawar Singh, who was arrested firstly by the police and later on released. Then he expressed his doubt upon the respondent who had committed indescent assault upon the wife of his brother and the accused had been thrashed by his younger brother. He stated that other report was made with the Panchayat in this regard but the same is not on record and it is, therefore, clear that doubt was expressed firstly on some other person and then upon the present accused and thereafter attempts were made to introduce PW-2 Krishna Devi as an eye witness. But her statement is not such which can be relied upon. The statements of the other witnesses are not very material and do not further substantiate the case of the prosecution, in view of the testimony of PW-2 which cannot be relied upon. In view of the above discussion, we are accordingly of the opinion that the findings recorded by the learned trial Court holding that the prosecution has failed to prove their case cannot be termed as perverse calling for an interference by this Court. There is no merit in 6 the appeal filed by the appellant, which is dismissed. Bail bonds furnished by the respondent shall stand discharged forthwith. ( Deepak Gupta ), J. March 12, 2009 ( V.K. Ahuja ), J. 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