IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. A. No. 363 of 1997 Date of decision: 04.10.2010 _____________________________________________________ State of Himachal Pradesh … Appellant. Versus Shishi Ram & Others … Respondents. _____________________________________________________ Coram The Hon’ble Mr. Justice R.B. Misra, J. The Hon’ble Mr. Justice V.K. Sharma, J. Whether approved for reporting?1 _____________________________________________________ For the Appellant : Mr. R.K. Sharma Sr. Addl. A.G. with Mr. Rajinder Dogra, Addl. A.G. For respondents : Mr. N.K. Thakur and Mr. Ramesh Sharma, Advocates. _____________________________________________________ Justice R.B. Misra, J (Oral). The present criminal appeal has come up for consideration after the leave to appeal has been granted under Section 378(3) of the Code of Criminal Procedure, in reference to judgment dated 26.03.1997 passed by learned Sessions Judge Shimla, H.P. in Sessions Trial No. 40-S/7 of 1995, acquitting the respondents/accused for the offences under Sections 302, 366, 212 and 114 of the Indian Penal Code. 2. The prosecution story is that Kumari Kanta had gone to jungle on 15.05.1995 with sheep and goats and did not turn up. Thereafter, on search, her dead body was found on 1 1. Whether Reporter of the local newspapers may be allowed to see the judgment. 2 25.5.1995 on the bank of river ‘Rupan’ and body was found struck up in branches of tree in the river, shirt around her neck was found and remaining body was naked. The FIR was lodged on 19th May, 1995 and post mortem was conducted on 22.5.1995 and after investigation the accused were charged for the aforesaid offences. 3. In order to prove its case the prosecution examined as many as 23 prosecution witnesses, whereas, the accused/respondents, through their statements under Section 313 Cr. P.C denied the prosecution case. 4. In the present case, apparently there is delay of five days which makes the prosecution case weak. The prosecution has examined PW-1 Shri Rattan Chand, PW-2 Smt. Shakli Devi, PW-3 Sh. Amar Sain, PW-4 Kumari Gian Patti, PW-5 Sh. Fateh Singh, PW-6 Shri Varinder Singh, PW-7 Dr. P.D. Sharma, PW-8 Shri Shakti Singh, PW-9 Shri Ramesh Chand, PW-10 Sh. Shiv Dayal, PW-11 Kumari Anita, PW-12 Kumari Narbada, PW-13 Shri Vasu Dev, PW-14 Shri Sunder Singh, PW-15 Shri Jagdish Chand, PW-16 Shri Manoj Kumar, PW-17 Shri Govind Ram, PW- 18 Shri Roshan Lal, PW-19 Shri Ranvir Singh, PW-20 Shri Krishan Chand, PW-21 Shri Lal Singh, PW-22 Dr. R.K. Dhiman, PW-23 Shri Tarsem Lal, PW-24 Shri Ram Lal. 5. On analysis of the prosecution evidence and the materials on record, we find that prosecution has relied upon the statements of Shri Amar Sain, PW-3 Kumari Gian Patti, PW-4, Shri Shiv Dayal, PW-10 and Kumari Narbada, PW-12. PW-3 has 3 stated that on 15.05.1995, he has seen accused Shishi Ram, accused Kumari Parvina, Kumari Gian Patti and Kumari Kanta had gone to village Kanati, and at that time, accused Shishi Ram had snatched away “Dhattu” from the head of Kumari Kanta Devi. PW-4 Kumari Gian Patti has stated that on 15.05.1995, when she was with Kumari Kanta Devi and Kumari Parvina at Kanati, accused Shishi Ram had come there and had snatched away the ‘Dhattu’ of Kumari Kanta Devi. She has further stated that she had come to her house with her cattle. Statements of PW-3 and PW-4 were that Shishi Ram had come there and snatched away the ‘Dhattu’ of Kumari Kanta Devi and at that time, accused Kumari Parvina, was also there. PW-4 has further stated that she had come to her house while Kumari Kanta and accused persons Shishi Ram and Praveen were still there. Kumari Anita (PW-11) and Kumari Narbada (PW-12) have both turned hostile as they have stated that they had not seen accused Shishi Ram and Kanta Devi together at Kanati, despite cross-examination their testimony has not been shaken. PW-10 Shri Shiv Dayal had turned hostile and he has stated that accused Shishi Ram had not come to his shop on 15.5.1995 with Kumari Anita nor he had tried to stay in his hotel on that night. Statements of these witnesses could only show that accused Shishi Ram had taken away the ‘Dhattu’ of Kumari Kanta Devi. At the most, it can be believed from the statement of Amar Sain that Shishi Ram had snatched away ‘Dhattu’ of Kumari Kanta Devi. Shri Amar Sain had left Kanati 4 when Kumari Kanta Devi and the accused persons Shishi Ram and Kumari Parvina were still there. In these circumstances, the last seen together has also not been proved. 6. Regarding recovery of dead body of Kumari Kanta, it appears that the dead body of Kumari Kanta was recovered from the bank of river Rupan and at that time there was only shirt on the body of Kumari Kanta Devi and said shirt was hanging around her neck and dead body was recovered on 25.5.1995, whereas, Dr. R.K. Dhiman, PW-22, who conducted the post mortem on the dead body of Kumari Kanta Devi on 22.05.1995, had noticed that Kanta Devi had died due to head injury, and as such, injury could have been caused, if she had thrown into the river or she had jumped into the river herself. However, as regards, opinion in respect to sexual act, though PW-22 has stated that sexual act had taken place with the deceased within seven days from the date of post mortem, but, in the same breath, he agreed to the suggestion of the defence counsel to the effect that the duration of recent sexual act cannot be determined in a case like the present one. However, nothing could be said that Kumari Kanta was firstly killed and thereafter she had been thrown into the river. As such, sexual assault and killing are not corroborated. Shri Varinder Singh PW-6, Shakti Singh PW-8 and Ramesh Chand PW-9 have turned hostile and prosecution has endeavoured to co-relate the accused with the offence by only giving instance that string was recovered from the pocket of the accused during his 5 personal search. However, nothing could be proved that same string was used in that Salwar which was being used by the deceased. Accused Parvina cannot be said to have committed the commission of offence under Section 366 of the Indian Penal Code, as has rightly been alleged by the learned Sessions Judge. 7. On analysis of evidence and materials on record, it appears that there is no direct evidence and there is only circumstantial evidence, as narrated. However, last circumstance has also not been proved that accused- respondents were guilty of offence of murdering Kumari Kanta. The mystery of death of deceased could not be co-related with the conduct of the accused-respondents. In the facts and circumstances and after going through the impugned order, we find that prosecution case, against the accused-respondents, has not been proved beyond reasonable doubt. In our considered view the prosecution has failed to prove the guilt of the accused-respondents. 8. In view of the inconsistencies and contradictions having been noted by the learned Sessions Judge, he has rightly arrived at a conclusion that the prosecution has failed to prove its case beyond reasonable doubt. In our considered view also, the prosecution has failed to bring home the guilt to the accused and there is no scope of interference in the impugned judgment and the criminal appeal, being devoid of any merit, is accordingly dismissed. 6 9. Bail bonds, furnished by the respondents, are hereby discharged. (R.B. Misra), J. 4th October, 2010 (V.K.Sharma), J. Naveen 7