IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 325 of 1996 Date of decision: 27.4.2010. State of H.P. …. Appellant. Vs. Putti Devi ... Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1. No. For the appellant-State: Mr. Vivek Singh Thakur, Addl. Advocate General For the respondent: Mr. Loveneesh Kanwar, Advocate. Deepak Gupta, J.(oral) This appeal by the State is directed against the judgement dated 27th May, 1995 delivered by the learned Sessions Judge, Mandi, Kullu and Lauhal-Spiti Districts, at Mandi, in Sessions trial No. 3 of 1995 whereby he acquitted the accused of having committed offence punishable under Sections 302 read with Section 34 of the Indian Penal Code. At the outset, we may state that respondent Bhatku Ram has expired during the pendency of this appeal and therefore, the appeal against him stands abated and the case is now being heard only qua respondent Putti Devi. The prosecution case is that on 16.09.1994 at about 6.15 p.m deceased Ram Lal was demolishing the wall of a ruined structure next to the house of the accused. A quarrel took place between him and the accused persons. According to the prosecution Putti Devi caught hold of the deceased by his neck 1 Whether the reporters of the local papers may be allowed to see the Judgment. Yes. 2 and pushed him on the ground whereas her husband Bhatku gave blows with stones on the head of Ram Lal who sustained injuries and fell unconscious on the spot. He remained at the spot for one night and was taken to the hospital at Padhar the next morning on 17.9.1994. At Padhar he was given first aid and emergent treatment by PW-8 Dr. S.K.Verma, who then referred him to the District Hospital, Mandi. The deceased remained admitted at the District Hospital, Mandi and finally succumbed to his injuries on 30.9.1994. Unfortunately, the deceased never gained consciousness and did not make any statement with regard to the incident. Complaint Ext.PA was made by Shri Sunder Singh, PW-1, with the police on 17.9.1994, one day after the incident, in which he alleged that when he was going to the house of his brother at about 6.00 p.m on 16.9.1994 he heard the cries of Reeta Devi PW-15 and he went to the spot and saw that Ram Lal was lying on the ground near the house of Bhatku Ram and Bhatku Ram was hitting Ram Lal with stones while his wife Putti Devi had caught hold of Ram Lal from his neck. Both the accused persons were saying that Ram Lal had troubled them a lot. Sunder Singh then asked the two accused why they were beating Ram Lal and on his asking they left the injured and ran away. He also stated that Ram Lal was crying and stating that he had been beaten and he may be saved. Then he called some other villagers who gathered at the spot. PW-5 Kagdu Devi wife of the deceased Ram Lal was also called who went to inform the Pradhan of Gram 3 Panchayat, who inturn tried to telephonically inform some other person but could not do so. Admittedly, deceased Ram Lal was kept in the village for one night and then taken to the hospital. The police carried out the investigation and recorded the statement of the witnesses including PW-2 Kamal Kumar, son of the deceased and PW-15 Reeta who was playing with PW-2. On completion of the investigation the accused were arraigned for having committed the aforesaid offences. They pleaded not guilty and claimed trial. After trial, they have been acquitted. Hence, the present appeal by the State. The main evidence against the accused are the statements of PW-2 Kamal Kumar, PW-15 Reeta and PW-1 Sunder Singh, who allegedly witnessed the occurrence in question. The learned trial Court has come to the conclusion that the statement of these three witnesses cannot be relied upon and there are inherent inconsistencies in these statements and therefore, acquitted the accused. PW-2 Kamal Kumar was aged about 9 years at the time when the statement was recorded. Since the witness could not understand the sanctity of oath his statement was recorded without administering the oath. In examination-in-chief Kamal Kumar stated that Putti Devi caught hold of the deceased Ram Lal whereas Bhatku gave blows of stone on the head of the deceased Ram Lal. This witness was cross-examined and in cross-examination he admitted that while his father was demolishing the wall of the ruined structure many stones fell 4 down from the wall on his father Ram Lal. These stones were removed by Bhatku. After the stones were removed Bhatku picked up his father from his legs and Putti held his father from his head and both of them together removed Ram Lal from the place of occurrence to the path. Thereafter, Reeta Devi raised a hue and cry that her father had been buried. Then PW-1 Sunder Singh came to the post who then went to call PW-5 mother of PW-2. PW-15 Reeta Devi is also a young child of tender age and she was only about 10 years old when her statement was recorded. The learned trial Court came to the conclusion that this witness understands the sanctity of oath and therefore, her statement was recorded on oath. In examination-in-chief she stated that she saw accused Putti Devi catching hold of the deceased and accused Bhatku pelting stones on the deceased. She saw this occurrence from a distance of 25 feet. She raised a hue and cry and then PW-1 came to the spot and she informed him about the quarrel taking place between the accused and the deceased. She was confronted with her statement made to the police under Section 161 Cr.P.C. wherein the details are not recorded and all that recorded is that Bhatku Ram and his wife Putti Devi started beating the deceased. It is not specifically recorded in this statement that Bhatku Ram gave a blow with a stone on the head of Ram Lal. It is also not recorded that Putti Devi had caught hold of Ram Lal from the neck. PW-15 Reeta also admitted in cross-examination that the ruined wall of an old 5 house adjacent to the house of Bhatku was being demolished by Ram Lal and after he took out some of the stones the wall tumbled down with a loud noise and stones fell on Ram Lal. Thereafter, Bhatku and his wife Putti Devi pulled out deceased Ram Lal from the debris of the wall. In the case of a child witness, the Court while appreciating the evidence of a child has to exercise great care and caution. A child will always tell the truth and will not tell lies. However, a child can be tutored by the parents or by the guardian or any other person having control over the child to make a statement in a particular fashion and a child if he is repeatedly told to give a particular version of an incident may in fact start believing that to be the truth. In this case both the children gave a parrot like version in examination-in-chief that Putti Devi caught hold of the deceased and Bhatku hit him with a stone. However, when they were cross-examined they came out with the truth and admitted that in fact the wall was being demolished. The stones from the wall fell on Ram Lal. Both these children also stated that it was the accused persons who pulled the deceased from below the stones and then placed him near the path. The testimony of PW-1 is totally false and not believable. Both the children have clearly stated that Sunder arrived at the spot after the entire incident had taken place and when Ram Lal had been placed next to the path but this witness stated that he himself saw the accused persons beating the deceased. This version is absolutely false and contrary to the statements of PW- 6 2 and PW-15. It has also come in evidence that there was some litigation between PW-1 Sunder and the accused. Therefore, the possibility of Sunder Singh giving a false statement to settle scores with the accused cannot be ruled out. The statement of the doctor does not rule out the possibility of the injury being caused to Ram Lal by the wall felling down. In these circumstances, the learned trial Court was justified in relying upon the statements of two minors made during cross- examination and coming to the conclusion that the prosecution has miserably failed to prove the case against the accused persons. We find no error in the judgement of the learned trial Court. The appeal is accordingly dismissed. The bail bonds furnished by the accused are discharged. (Deepak Gupta) Judge. 27th April, 2010. (Rajiv Sharma) ™ Judge.